JiC is happy to welcome Dawood Ahmed as a guest-poster. Dawood is a Solicitor (non-practicing) and a research associate at the Center on Law and Globalization. In his first post at JiC, Dawood introduces some of the key challenges facing the International Crimes Tribunal of Bangladesh. Enjoy!

Jamaat-e-Islami leader Delwar Hossain Sayadee, center, leaves the International Criminal Tribunal for Bangladesh (Photo: AFP/Getty Images)

As the eyes of the international justice industry focused on Syria and Libya in these past few months, a rather important development in South Asia has remained under-discussed. After much delay, the aptly named International Crimes Tribunal of Bangladesh has this week charged its first suspect, Delwar Hossain Sayadee, with alleged war crimes committed during the country’s 1971 civil war, a conflict that eventually led to the secession from then West Pakistan (present day Pakistan).

For those unfamiliar with the history of Bangladesh, the country existed until 1971 as the eastern flank of Pakistan. During the independence war of that year, widespread inter-ethnic atrocities including rape, murder, arson and torture were carried out against the population of Bangladesh (or East Pakistan at the time); although in most cases, the main protagonist was the West Pakistani army and its ‘Razakar’ allies, it is true that the Mukti Bahini (Bengali liberation fighters) and their Indian supporters too carried out a significant number of atrocities against those of non-Bengali descent. While total estimates of numbers killed range between 26,000 (per Pakistani sources) and 3 million (per Bangladeshi sources), historians now generally agree that what transpired in those nine months of civil war can be labeled as genocide.

The tribunal has been established to try those who committed war crimes during that bloody conflict.

From a policy perspective, the tribunal is of particular interest because it marks a first in two important respects: it is not only the first war crimes tribunal to ever be established in a Muslim majority country but it is also the first such institution in all of South Asia, a region that is home to many under-reported but systematic human rights violations; examples being the Indian army’s suppression of the Kashmiri independence movement, Pakistan’s repression in Baluchistan and Sri Lanka’s human rights violations during its civil war against the LTTE.

Nevertheless, for all of its promise of setting a regional precedent, one must approach the issue of the court with a healthy dose of skepticism.

The initial criticisms leveled against the tribunal are many. First, there is the question of a less than transparent policy reversal: after the 1971 civil war, opportunities did indeed arise for trying those suspected of committing war crimes but these were deliberately forgone in the interests of achieving sovereign recognition and peace: 195 surrendered Pakistani officers were identified as suspected war criminals but were later repatriated to Pakistan without charge as part of a bilateral political compromise (Shimla Agreement) agreed between India and Pakistan.Similarly, with regards to domestic Bengali collaborators, whilst the post-independence government in Bangladesh did enact the Collaborators Act 1972 to try war criminals, only a few hundred were in fact convicted and, in the interests of promoting national reconciliation, the government deliberately declared a general amnesty a year later for all those charged with war crimes under the Act (except for those accused of “serious crimes”: rape, arson, murder and plunder). In 1975 even this law was repealed and that was the end of the story of ensuring accountability; peace and stability was valued more highly than justice.

Now that the government has suddenly revived this “justice over peace” policy after almost forty years, the biggest question mark that now exists over the selections of suspects who are currently on the court’s docket. All seven individuals who have been apprehended are senior members of the Jamaat-e-Islami and the Bangladesh Nationalist Party, which of course just coincidentally happen to be the parties in opposition to the incumbent government! In fact, the leader of the opposition party and former prime minister, Khaleda Zia has gone so far as to publicly reject the legitimacy of the tribunal.

And of course the institutional design of the tribunal itself creates much suspicion: the International Bar Association, the European Union and Human Rights Watch, whilst welcoming the tribunal, have expressed serious reservations about the rules governing the proceedings: hearsay and newspaper evidence is admissible, the appointment of judges cannot be challenged for bias and nor can the accused petition the Supreme Court to review the constitutionality of the tribunal.

Sayeedi in a prison cell.

The government also has not done a great job of persuading international observers that it means well: for example, in August, a British barrister, Toby Cadman QC, who is tasked with defending some of the suspects, was denied a visa to enter Bangladesh.

It should also be noted that in the case of the current accused, Mr. Sayadee, whilst the prosecution took over six months to frame charges, the court has now given the defendant only 27 days (until the end of October) to prepare his defence.

Perhaps I have painted too grim a picture. Admittedly, in my personal discussions with Bengali friends, they seemed respectful and hopeful about the prospects for the court, which they see as satisfying a valid appetite for much needed accountability in the country.

Similarly, one could argue that considering that much of the evidence has likely been destroyed in previous decades and many suspected individuals have been well known for their involvement in atrocities (as is often the case), a lower standard of proof may arguably suffice, albeit with accuracy being compromised in this tradeoff. Also, Human Rights Watch has acknowledged that the government has recently made some amends to the tribunal’s rules in response to their many suggestions.

Whilst we as outsiders can provide well intentioned advice, ultimately it remains the prerogative of the Bengali people as to how they wish to proceed with holding those who have wronged them accountable. Whilst there are no doubt visible deficiencies in this new court, it is indeed far too early to pre-judge whether, on balance, the court will do more good than harm; this we shall discover only with the passage of time.