Assistant Secretary General of Bangladesh Jamaat-e-Islami, ATM Azharul Islam, was today convicted of five of the six charges he faced and was sentenced to death by hanging. He is the sixteenth person to be convicted by the highly controversial and widely discredited Bangladesh International Crimes Tribunal (“Tribunal”).
ATM Azharul Islam continues to protest his innocence and as his international counsel can confirm that we will appeal to the Appellate Division of the Supreme Court against the conviction and sentence and we will submit an urgent appeal to the UN Special Procedures Branch in Geneva for the flagrant denial of justice in this case.
It is regrettable in the extreme that the Tribunal still refuses to take into account the plethora of criticisms from various international bodies and experts.
It is further regrettable that the Government of Bangladesh maintains the arrogant, and wholly unsustainable, point of view that the Tribunal cannot be criticised and any such attempts are without foundation.
In the judgment delivered today by the Tribunal, there are a number of fundamental flaws and once again demonstrate a clear failure to apply recognised general principles of international law. In particular the Tribunal has adopted a highly flawed approach to the definition of Crimes Against Humanity and has gone as far to say that the International Crimes (Tribunals) Act 1973 (as amended) has supremacy over customary international law.
In its introductory remarks the Tribunal makes the following statement:
“The Act of 1973 has ensured all the universally recognised rights to the accused in order to make fair trial. The fundamental and key elements of fair trial are (i) right to disclosure, (ii) holding trial in public, iii) presumption of innocence of the accused, (iv) adequate time for preparation of defence case, (v) expeditious trial, (vi) right to examine defence witness and (vii) right to defend by engaging counsel.”
Such a statement is devoid of any real substance and is a poor attempt to paper over the very large cracks that have been repeatedly demonstrated by all independent observers on the trial process. The statement further demonstrates the reality of these trials and the regrettable manner in which the Tribunal has failed to apply the theoretical rights guaranteed to the accused by the 1973 Act and the numerous international treaties to which Bangladesh is a State Party.
To suggest that all universally recognised rights are applied to the accused is nothing short of contemptible. The fact remains that the Tribunal has been repeatedly and universally condemned for its approach towards the cases before it.
30 December 2014 provides a further example of the wholly inappropriate procedures adopted, and position taken by the Tribunal.
It is deeply regrettable that 2014 must end on such a low.
As with all of the previous sentences handed down by both Tribunals, the Government of Bangladesh is called upon to immediately issue a stay of proceedings so as to enable a detailed, international, and independent review of the Tribunal and its procedures given the very clear bias shown against the accused thus far.
It is clear from the judgment delivered that the Tribunal has been developed so as to seek a conviction at all costs, and not to seek justice or address impunity.
The rhetoric adopted by the Government of Bangladesh and repeated by the Tribunal that it adheres to all international standards and therefore is effectively beyond reproach. Such a comment is ludicrous in the extreme when one considers the events of the past three years involving the Tribunal.
On the basis of previous concerns raised, and supported by members of the international NGO community, it cannot be said that the judgment in Mr. Islam’s case is free from any form of influence, as any decision must be tainted by the concerns repeatedly raised in the past.
The specific concerns in this matter are not limited to procedural issues, or past concerns raised about the Tribunal.
When one considers the evidence that has been presented against Mr. Islam, it is clearly not of sufficient weight to convict him of the charges he faced, and further, not of sufficient weight to impose the ultimate sanction, namely a sentence of death.
The specific concerns with regard to the evidence are as follows:
- It would appear that a significant amount of weight has been placed on a witness who has since deceased and therefore was not in a position to give live evidence, and therefore the defence did not have the opportunity of cross-examining or challenging the evidence of that witness;
- It would appear that a significant amount of evidence given by those witnesses in a position to attend the trial was based upon what a third party who had not attended to give evidence had told them. These third parties include the deceased, and thus constitute hearsay in the main;
- The evidence before the court appears to suggest a conviction on the basis of ‘guilt by association’, in that the evidence taken at its highest, based on the prosecution account, suggests that Mr. Islam may have been present at a scene of an alleged crime, and may have been seen associating with members of the Pakistani Army, and yet there does not appear to be any witnesses who can gave evidence to say conclusively that they saw Mr. Islam actually committing any of the offences charged or was in a position of authority; and
- The verdict of the court suggests that the intention was to convict Mr. Islam regardless of the evidence in that the verdict reads “From the discussions made earlier in relation to charges the Tribunal is convinced to record its finding that accused A.T.M Azharul Islam, for his acts, conduct and culpable association with Pakistan occupation army and Al-Badr is criminally responsible for the offences as listed in charge nos.02, 03, 04, 05 and 06 [in part] resulting from their common criminal design and shall be punished as if he himself committed those offences, irrespective of whether and in what manner he himself directly participated in the commission of any of those offences.”
The language clearly infers that in the judges’ opinion it is irrelevant whether there is evidence to suggest that there was direct participation, as he will be punished as if he directly participated.
It is contemptible to impose the death sentence on any individual where there is no clear evidence to implicate them in the actual commission of a crime.
It is appropriate to re-iterate some of the previous criticisms of the tribunal in that:
- No international standards have been upheld;
- There has been no respect for the principle of the presumption of innocence;
- A wholly inadequate amount of time has been provided for the preparation of the defence case;
- The procedures adopted by the Tribunal are tainted by their illegality under international law, and the inference of bias following the disclosures made in ‘Skypegate’;
- The Tribunal is being used as a political weapon by the ruling Awami League rather than a tool of justice.
This parody of justice must end immediately. The principle behind the establishment of the Tribunal is a sound one, and should be supported. Where there is evidence, those implicated must stand trial, and that evidence heard and tested. However, this is not being allowed to happen at present.
The ruling Awami League is therefore called upon to immediately implement the following:
- Impose an immediate moratorium on all death sentences passed by the Tribunal and the Supreme Court;
- Call an immediate halt to all trials currently before the Tribunals;
- Commission a truly independent and international inquiry into the Tribunal to enable the appropriate procedures to be developed and adopted; and
- Move the Tribunal to an independent third party country so as to ensure that any trial is free from any political influence, perceived or real.
Failure to halt and reform the Tribunal as suggested risks the undermining of those very democratic principles that those who lost their lives in the 1971 war fought and died to see implemented.
9 Bedford Row, London
30 December 2014