In recognising the inherent need for accountability, and in recognising the demands of the Bangladeshi people that those who are alleged to have committed international crimes during the 1971 War of Liberation face trial, the principle of the establishment of an accountability mechanism is wholeheartedly supported.
It is with deep regret that the current practice of the Bangladesh International Crimes Tribunal (BICT) is failing to uphold the highest international standards required in such cases, in particular where there is the imposition of the death penalty.
An appropriate transitional justice process is essential when seeking to reconcile post conflict. This holds true regardless of how many years have passed since the events in question, and given it has been more than four decades since Bangladesh gained independence from Pakistan it is arguably even more important on the basis that over the passage of time, resentment at what is seen as impunity has grown.
However, for such a process to have a lasting and positive effect, it must, above all other things, maintain universally recognised international standards as to fair trial, independence and transparency, and adhere to those very principles set out in international treaties to which Bangladesh is a State Party. It is here where the BICT fails.
A national judicial mechanism such as the BICT, without international assistance, has an almost impossible task. It must offer victims justice for the crimes suffered, but it must also allow those accused persons to present their defence and their fundamental rights of due process be protected. In dealing with offences of the utmost gravity it is understandable that victims may rail against what they view as hypocritical, given that the those committing the offences did not observe the rights of the victims.
The central issue however is that any judicial mechanism, post conflict or otherwise, is about the pursuit of justice and accountability, it is not about revenge or political retribution. Sadly, the BICT has shown itself to be merely that, a politicised process that fails to uphold the very standards it was set up to address.
The Bangladeshi legislature, in explicitly removing constitutional and fair trial protections from those due to appear before the BICT undermined its effectiveness and its legitimacy from the outset, and further, set the tone for what was then to develop.
The refusal to allow defence witnesses to testify, the preventing of cross-examination of prosecution witnesses, and the willingness to ignore the clear instances of political and third party interference has now rendered the BICT meaningless as far as an instrument of justice is concerned.
The effect however is much wider than that which is now being considered. In conducting the trials in the manner thus far, the process of accountability and thereafter offer redress to the victims and build upon lasting reconciliation an important opportunity for Bangladesh to move forward from a fractured State is at serious risk.
The BICT can still achieve that for which it was developed, and further, assist in the rebuilding of societal relations. However, significant change must be brought about immediately. It is strongly recommended that the current trials, and all pending sentences are stayed pending an independent international review.
Independence is the key so as to ensure transparency, and therefore establish that the process is aimed at accountability and addressing the crimes of the past rather than political retribution.
It is further recommended that due consideration is given by the United Nations to the establishment of an internationally supervised mechanism, one that adheres to recognised due process rights, one that imports fair trial protections from the Constitution of Bangladesh and those of the various international instruments to which Bangladesh is a State Party and therefore obliged to observe.
This mechanism will need to submit to international supervision, as it is only through such protections being put into place that it can truly become an instrument of justice that seeks to address the crimes of the past.
Lord Carlile of Berriew CBE QC, Liberal Democrat Member of the House of Lords and formerly the UK’s Independent Reviewer of Terrorism Legislation
Beth Van Schaack, Visiting Professor in Human Rights, Stanford Law School; former Deputy to U.S. Ambassador-At-Large for War Crimes Issues in the U.S. State Department’s Office of Global Criminal Justice
Alex Whiting, Professor of Practice Harvard Law School, former Prosecutions Coordinator at the ICC Office of the Prosecutor
David Schwendiman, Lead Prosecutor of the EU Special Investigative Task Force (SITF), former Deputy Chief Prosecutor and Head of the Special Department for War Crimes, Prosecutor’s Office of Bosnia and Herzegovina
Mark Stephens, CBE, Howard Kennedy LLP, former President of the Commonwealth Lawyers Association
Prof. Kevin Jon Heller, Professor of Criminal Law, SOAS, University of London
Dr. Mark Kersten, Research Fellow, Munk School of Global Affairs, University of Toronto
Alison Smith, International Criminal Justice Director and Legal Counsel, No Peace Without Justice
Almudena Berbabeu, international attorney, director of the Transitional Justice Program at the Center for Justice and Accountability. Winner of the 2015 Letelier-Moffitt Human Rights Award
Schona Jolly, Barrister, Cloisters Chambers London, Vice-Chair of the Bar Human Rights Committee for England and Wales
Federica D’Alessandra, Fellow in Transitional Justice at Harvard University, and serves as the Secretary of the International Bar Association’s Human Rights Committee and Co-Vice Chair of the International Bar Association War Crime Committee.