Human Rights Watch Statements on the ICT

Starting from May 2011- cautiously optimistic statements:

"The attempt by the Bangladeshi government to create a domestic tribunal for such grave crimes could set a valuable international precedent," said Adams. "But without changes to the law and rules of procedure, the process may not meet international fair trial standards. This could result in a lack of credibility for the process in Bangladesh and internationally, which would only benefit those responsible for the horrific crimes of this period. Fortunately, the government and tribunal can fix these problems easily if they have the will."

Interestingly, HRW chooses here not to mention violence perpetrated by the freedom fighter side - presumably, it was clear already at this point that the trials would only target collaborators of the Pakistani regime:

On March 26, it began Operation Searchlight, sending troops into East Pakistan to arrest Awami League leaders and put down protests. The Pakistani army and affiliated vigilante groups embarked on a massive wave of violence, including widespread rape. 

July 2011: not fully satisfied with the changes to the ICT act, but generally positive. The trials haven't started yet, so it's all about meeting international standards at this point.

"We want these trials to succeed in bringing the people responsible for the horrific crimes of 1971 to justice," said Brad Adams, Asia director at Human Rights Watch. "While the amendments are a significant improvement, key problems still need to be fixed to ensure fair trials and avoid unnecessarily lengthy appeals." 

"Bangladesh has promised to meet international standards in these trials, but it has some way to go to meet this commitment."

November 2011: the trials have started and the problems begin. Complaints about intimidation of defence by police and intelligence services. According to HRW, the process was already 'tarnished' at this point.

 Lawyers representing the accused before the ICT have reported being harassed by state officials and threatened with arrests. Several witnesses and an investigator working for the defense have also reported harassment by police and threats for cooperating with the defense.

Another senior lawyer and a prominent member of the Jamaat-e-Islaamiya party, Abdur Razzaq, faces an arrest warrant on charges relating to riots in Dhaka which took place in September. Razzaq, who was in Europe at the time of the riots, has been granted bail. He is expected to play a leading role in defending several of the accused. Human Rights Watch has learned from credible sources that ICT prosecutors are also seeking to formulate war crimes charges against Razzaq and that the current arrest warrant is intended to make it difficult for him to participate fully in preparing the defense.

Human Rights Watch has also learned that a key defense witness has been arrested. A journalist who was conducting research for the defense has been threatened with arrest and has since gone into hiding in fear for his life.

A further nine defense witnesses are facing criminal charges based on complaints against them filed with the police by a prosecution witness. Some prosecution witnesses have told defense counsel that they were coerced into providing statements to the prosecution and were warned against cooperating with the defense.

“Harassment of defense counsel and witnesses further tarnishes a flawed process,” said Brad Adams, Asia director at Human Rights Watch. “If the Bangladeshi government wants these trials to be taken seriously it must ensure that the rights of the accused are fully respected. That means making sure that lawyers and witnesses don’t face threats or coercion.”

November 2012: allegation that a witness in the Sayedee case was abducted. HRW is clearly taking this seriously, despite the fact it is dismissed by the court as a fabrication by the defence.

“An allegation as serious as the abduction of a witness deserves prompt action, and a thorough and impartial investigation,” said Brad Adams, Asia director at Human Rights Watch. “Instead of ordering an independent investigation, the court asked a party in the case to investigate, and then blithely accepted its answer. This is an unacceptable way to respond to an allegation of an abduction. Where is Shukho Ranjon Bali?”

Still, HRW appears willing to entertain the possibility that the episode was indeed a fabrication:

“Finding out what happened in this case is essential to the credibility of the court and the entire war crimes trial process,” Adams said. “If the defense was involved in a hoax it should face penalties. If Bali was abducted then his life may be in danger, and the court and government, by failing to investigate, are responsible for his fate.”

December 2012, in the wake of the Economist revelations, informally known as Skypegate:

On December 11 Justice Nizamul Huq, chairman of the International Crimes Tribunal (ICT) hearing allegations of war crimes, crimes against humanity and other serious crimes committed in the 1971 war of liberation from Pakistan, resigned after audio tapes and email correspondence were published concerning his conduct in his capacity as the presiding judge in the Sayedee case and other ICT matters. The Economist published further emails and communications on December 13 which it said showed collusion between the judge, the prosecutors, and the executive.
 
“It would be highly irresponsible and unprofessional for a verdict to be delivered when none of the judges heard all the evidence and were unable to assess the credibility of key witnesses, particularly in a trial involving 40-year old evidence and complex legal issues,” said Brad Adams, Asia director at Human Rights Watch. “Before the chair of the court resigned for improprieties only one judge had heard the totality of the evidence, and now even that one judge is gone. A new trial is the only way for the court to preserve its integrity.”

There has not, of course, been another trial.

January 2013: further concern regarding the disappeared witness. It's clear that HRW is taking it seriously, presumably due to the various pieces of evidence strongly indicating that the abduction did indeed take place:
 
A relative of Bali’s has said that he last heard from Bali on the date of the alleged abduction. The relative reported that Bali said he was in Dhaka and was going to testify in court. An independent journalist’s inquiry has confirmed that phone records indicate that there was a phone call from Bali to this relative. Family members have not heard from him since and have expressed their concern.

Although he vociferously denied any bias against the defense, Justice Huq had a member of the prosecution team and the deputy registrar in his chambers during the entire interview with Human Rights Watch, as he had in previous meetings. Justice Huq has since resigned as chairman of the ICT following publication by The Economist of intercepted email and phone conversations showing that there was prohibited contact between Huq, the prosecution, government officials, and an external adviser.

February 2013: As part of a general report on the human rights situation in Bangladesh, some strongly worded comments on the ICT.

Glaring violations of fair trial standards became apparent in 2012 in the trials of the International Crimes Tribunal (ICT), a wholly domestic court set up to try those accused of war crimes during the 1971 war of independence. One of the present government’s central campaign pledges in 2008 was to ensure that these long overdue trials took place. Human Rights Watch has long called for justice for victims in the 1971 liberation war. However, serious flaws in the law and rules of procedure governing these trials have gone unaddressed, despite proposals from the US government and many international experts.

 All the ICT trials underway in 2012 were replete, with complaints from both the prosecution and defense. Each side accused the other of witness intimidation.  In one apparently serious irregularity, the prosecution claimed that it was unable to produce several of its witnesses and asked that written statements be admitted as evidence, absent any direct or redirect examination. The court granted the request despite the fact that the defense produced government safe house logbooks which appeared to show that some of these witnesses had been in the safe house and available to testify. In one case, when on November 5 the defense attempted to bring one of these witnesses, Shukho Ranjan Bali, to court, he was abducted from the gates of the court house by police officers in a marked police van.

HRW seems to now view the abduction as a fact.






In December, The Economist published an article detailing some hacked email and Skype conversations between the chairman of the ICT and an external adviser based in Brussels. These communications revealed longstanding prohibited contact between the Chairman, the government, the prosecution, and the advisor. They showed direct government interference in the operations of the ICT. The publication of these communications caused the Chairman to resign, leaving a bench in which none of the three judges has heard the totality of the evidence against the accused. Motions for retrials in four of the cases due to these communications were rejected by the tribunal, calling into question its impartiality.


“The trials against the alleged mutineers and the alleged war criminals are deeply problematic, riddled with questions about the independence and impartiality of the judges and fairness of the process,” Adams said. “This is tragic, as those responsible for serious crimes could end up appearing to be victims of a miscarriage of justice. By dismissing all criticism out of hand without any real inquiry into them, the government shows it is more concerned about winning votes than about following the rule of law.”

The choice of wording here is deeply concerning: it is as if Adams himself also thinks the defendants are probably guilty, but the problems with the court could enable them to make themselves into victims. Would it not have been appropriate to at least mention the possibility that innocent people may be sentences, and probably executed?

February 2013, in the wake of Shahbag protests - a mixture of  meek and fairly strong wordings:

Retroactive legislation that violates fair trial standards undermines the legitimacy of the work of Bangladesh’s International Crimes Tribunal (ICT). The amendments were offered to enable an appeals court to overturn a life sentence imposed on Abdul Qader Mollah and impose the death penalty.

 (one gets the impression from the previous few statements by HRW that the legitimacy of the work of the ICT is quite undermined already)

“Justice for victims of war crimes and other serious abuses during the 1971 war of liberation is essential,” said Brad Adams, Asia director at Human Rights Watch. “But a government supposedly guided by the rule of law cannot simply pass retroactive laws to overrule court decisions when it doesn’t like them. The Bangladesh government should pause, take a deep breath, and repeal the proposed amendments, which make a mockery of the trial process.”