Bangladesh's Supreme Court upheld death sentences for two opposition leaders convicted of war crimes during the independence war. But an advisor to their defense team tells DW the ruling is a flagrant denial of justice.
In a move likely to trigger protests, the Supreme Court rejected final appeals from the two politicians against death sentences for atrocities committed during the 1971 independence war against Pakistan. The ruling cleared the way for them to be hanged. A special war crimes tribunal convicted Salahuddin Quader Chowdhury, 66, of the Bangladesh Nationalist Party (BNP) and Ali Ahsan Mohammad Mujahid, 67, of Jamaat-e-Islami in 2013 of several charges, including genocide and rape during the war.
The trials conducted by Bangladesh's International Crimes Tribunal (ICT) to investigate and mete out justice for the atrocities committed during the 1971 conflict have exposed underlying tensions in the country's political and religious identity. Opponents criticize the ICT as part of a politically motivated campaign to weaken the opposition. Scores of people have been killed in violent protests since 2013, when the tribunal, set up in 2010 under the government of Prime Minister Sheikh Hasina, began delivering verdicts.
In a DW interview, Toby Cadman, a barrister and advisor to the defense team representing the two convicted opposition leaders, slams the legal framework of the ICT as "falling woefully short" of international standards, and claims there is evidence of government interference in the judicial process.
DW: Following the High Court's decision to uphold the death penalty. Does the defense have any options left?
Toby Cadman: In short no. There are no legal avenues of appeal. The 'Review Petition' was the final avenue of appeal that is allowed in capital cases. It's important to stress that the review is conducted by the same judges in the Appellate Division of the Supreme Court that dismissed the appeals.
Moreover, the court gave limited time in both cases to advance any legal argument. In the Mujahid case, it was dismissed less than a day after hearing the review, and in Chowdhury's 30 minutes later.
The Attorney General has stated that there is no further appeal and the only way in which the execution can be stopped now is by way of presidential pardon, despite the government having made clear no "war criminal" will be pardoned. The government has a vengeful thirst for execution and is content to circumvent the rule of law to achieve it.
The only option left is the urgent intervention by the UN, EU and other states such as the USA and UK. There must be recognition by the international community that it has a duty to act and prevent summary execution following a flagrant denial of justice. The international community has to seriously consider what action to take if the government moves forward with the executions.
How soon will the condemned men be executed?
There is no timescale set at present, but as per previous executions, it is likely to be soon. The Attorney General has stated there is nothing preventing the executions now so it's likely to be a matter of days.
Has the prosecution been able to provide clear, irrefutable evidence of your clients' involvement in genocide, religious persecution, abduction and torture during the war of independence in 1971?
Bangladeshi politician Salahuddin Quader Chowdhury's appeal was dismissed 30 minutes after hearing the review
Absolutely not. The legal framework of the Tribunal falls woefully short of international standards in terms of definitions of crimes and rules of evidence. The prosecution has been unable to prove any elements of the charges against the defendants.
The fact remains that these convictions are based on multiple hearsay evidence and from witnesses who have been shown to be unreliable, with no supporting evidence backing them. There are clear and credible accounts of witnesses being compelled to advance false accounts.
The release of private discussions between a senior judge, prosecutors, members of the government and prosecution witnesses in 2012 demonstrates that there was clear collusion that may amount to a conspiracy to pervert the course of justice. None of these complaints have ever been investigated.
In the case of Mujahid, there was no clear, direct evidence to link him as a paramilitary commander. And in the case of Chowdhury - who ran alibi evidence - six witnesses proposed by the defense to rebut the prosecution case and corroborate his alibi were prevented from testifying to such an extent that the government sent a communiqué to the airport immigration and airline personnel to prevent them from traveling to Dhaka to give evidence.
The Supreme Court ruled that their statements were concocted by the defense despite the witnesses demonstrating a clear intent to give evidence in court and that the witnesses were of high moral standing (one a former US Ambassador and another a former Prime Minister). This approach demonstrates that the courts did their utmost to prevent any reliable evidence being presented. It is also notable that in both cases, lawyers for the defendants were arrested and therefore unable to represent their clients in the appeals.
One of the main points of criticism of the Tribunal has been the reliability of witnesses over 40 years after the alleged offenses took place. Have there been any specific examples of crucial testimony against your clients which you would view as unreliable or faulty?
Dealing with historic war crimes cases is a real challenge. I was a member of the Bosnian Prosecutor's Office from 2004-2010 and this was a challenge dealing with cases of 10 or more years old. Dealing with 40-year-old cases is extremely difficult but that does not mean that the standards of evidence should be lessened. In dealing with capital cases there is a higher standard of proof as they are irreversible.
Concerning the evidence, it has largely been multiple hearsay and rumor. There has been little, if any, direct credible evidence. Reading the judgments, one realizes that the courts have been inappropriately used to advance a particular account of the conflict. In dealing with cases that are littered with fair trial concerns and unreliable witness testimony, it is difficult to highlight a specific issue as there are so many.
It is of concern, however, that witnesses who were able to attend and give evidence were not called by the prosecution, instead relying on uncorroborated evidence, with the sole purpose of ensuring that certain witnesses were not cross-examined.
The ICT has been criticized by human rights organizations for allegedly failing to meet international judicial standards. To what extent have the defendants received a fair trial in the view of the defense?
These cases all constitute a flagrant denial of justice. None of the defendants have received a fair trial on any interpretation of international or domestic standards. The legal framework removes fundamental rights under the constitution that are guaranteed to defendants in ordinary criminal proceedings. There is no right of challenged, no effect right of appeal - judges cannot be challenged for bias and there is no scope to question to the constitutionality of the statute or the rules.
Due process rights have been explicitly removed for those who appear before the ICT without any justification. In no jurisdiction could a conviction stand where there are demonstrable instances of the judges, prosecution, the security services and the political classes directly interfering with the process, interfering with witnesses, taking steps to ensure a conviction and quick executions. This is clearly a case of rushing to judgment and the trials have set out an anatomy of injustice.
The government repeatedly states that the Bangladesh ICT is a fairer and more transparent process than any of the international tribunals. Such a statement bears no credibility. This process will be remembered as a wasted opportunity. There must be justice for the victims of the 1971 war of liberation. This stands as one of the worst conflicts in history and demands justice. This should have been, and still should be, the subject of a UN-supervised international tribunal.
Has the ICT been under direct political pressure from the Hasina government to find the accused guilty and to hand down death sentences?
There is clear evidence of government interference in the process. We have asked in the past and will continue to demand that there is a full inquiry into the level of governmental interference, the practices of the ICT and judicial and prosecutorial misconduct. Because of this failure, the actions of the government, the ICT, rather than assist in accountability and the pursuit of justice, has forever damaged the rule of law in Bangladesh, and undermined its democracy.
Toby Cadman is a barrister and founder of the international Forum for Democracy and Human Rights. He has served as international defense counsel for both defendants since early 2011.
The interview was conducted by Grahame Lucas.