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Bangladesh war crimes trial

Ironically, most of the ammunition for Jamaat’s ’propaganda’ is given by the Bangladesh government

by David Bergman, 13 August 2011

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A year on from the International Crimes Tribunal’s first hearing in July 2010, there remains much to be concerned about in both the legal regime and the day-to-day operation of the tribunal. These inadequacies provide much of the ammunition for what the government terms a Jamaat ’propaganda’ war to undermine the tribunal, David Bergman argues in a two-part essay

New Age, 5 August 2011

Convicting the guilty or fair trial for the accused?

A year on from the International Crimes Tribunal’s first hearing in July 2010, there remains much to be concerned about in both the legal regime and the day-to-day operation of the tribunal. These inadequacies provide much of the ammunition for what the government terms a Jamaat ’propaganda’ war to undermine the tribunal, David Bergman argues in the first of a two-part essay

IN THE summer of 2010, when the Bangladesh government invited the US ambassador-at-large for war-crimes issues, Stephen Rapp, to advise its ministers on the legal regime it had established to prosecute those alleged to have committed international offences during the 1971 war, the government seemed, at last, willing to live up to the many promises it had made for the trials to uphold minimum international standards.

It had, of course, received similar advice in the past—from the United Nations, the International Bar Association, the International Centre for Transitional Justice and Human Rights Watch.

While the government had happily ignored their counsel, one could reasonably have assumed that any advice from Rapp would be far more persuasive.

Whereas all the other advice had been unsolicited, Rapp had been specifically invited by the government to come to Bangladesh and speak to ministers.

Also, as Rapp had been a war crimes prosecutor, the Bangladesh government could reasonably have hoped that he would better understand the needs of a prosecuting state.

And, of course, as a representative of the US government, his support for the process would be extremely helpful in ensuring wider international approval.

Earlier this month, a response finally came to Rapp and the others who had given their advice but, while it did involve some changes in the rules of procedure, it nowhere near lived up to the promises made by the government.

Although the tribunal has made some changes to the rules of procedure, they are quite limited, failing to accommodate a number of Rapp’s proposals. And, significantly, the government continues to stubbornly refuse to make important changes to the International Crimes (Tribunal) Act 1973 and to Article 47A of the constitution (which prevents the accused from accessing constitutional rights) sought by the other groups.

Rapp has yet to respond. But, apart from his likely concern that many of his suggestions went ignored, he may feel particularly misled by one decision made by the government.

He was told by ministers and the tribunal that a change in the 1973 act was not practicable or realistic, and that the only changes possible were those to the tribunal’s rules of procedure.

Yet, just a month ago, parliament passed very complex legislation amending the constitution after only a short period of consultation. In fact, rather than using the legislative opportunity to remove Article 47A—a crucial article behind a number of the problems with the tribunal—the government tightened it up even further, preventing any individual accused, whether or not they were part of ‘an auxiliary group’ to the Pakistan military, to seek a remedy from the High court.

Till now, many, quite rightly, have given the government the benefit of the doubt over the tribunal. This is the first court of this kind that this country has set up, and it is understandable that the government would need time to feel its ways towards ensuring a proper trial process.

But now, with key failings continuing to remain in the law—and repeated advice being rejected—it is right to ask whether the tribunal has been established for the conduct of a fair trial to determine the innocence or guilt of the accused, or whether the government sees it as a mechanism to convict those whom it has already decided are guilty of international crimes.

Before one considers the extent to which the legal regime remains inadequate and why the government’s repeated commitments to holding trials of ‘international standard’ amount to very little, one should mention the positive aspects in the law.

The rules or procedure now clearly state that a ‘person charged with crimes shall be presumed innocent until he is found guilty,’ that ‘no person during investigation under the Act shall be subjected to any form of coercion, duress or threat of any kind,’ and that the accused will be ‘tried without undue delay.’ There are also procedures in the 1973 act to ensure that defence lawyers can cross-examine witnesses.

The rules also now state that an accused is ‘entitled to a fair and public hearing and to engage counsel at his choice,’ and that an offence must be proved ‘beyond reasonable doubt’. There is also is now an improved system of regulating bail so that except in ‘exceptional circumstances’ the maximum detention during the process of investigation will be one year, and bail can be sought at any time.

Many of the attributes of a fair trial are present in the law.

However, despite this, extensive problems remain.

First, section 16 of the International Crimes (Tribunal) Act 1973 prohibits, prior to conviction, either party from appealing against any order or decision by the tribunal including those relating to cognisance of offence, framing of charges, admissibility of evidence and of course, despite an improved regime, bail.

Article 47 A of the constitution bolsters this restriction by denying to those accused under this act the right to seek any remedy from the High Court, including the possibility of even challenging section 16 for being in breach of constitutional rights.

As a result, no decision made by the tribunal, however perverse or unwarranted, prior to conviction, can be appealed.

The need for these ‘interlocutory appeals’—part and parcel of the process in the ordinary domestic criminal courts in Bangladesh—is, of course, necessary for all criminal prosecutions. They are, though, arguably particularly necessary in this tribunal as practically all the tribunal’s ruling have so far been unreasoned and call out for appeal (see part two of this essay).

In its recent amendment to its rules of procedure, the tribunal has introduced a mechanism which allows the parties to apply to it for a review of one of its orders—a process effectively asking the tribunal to overturn a decision it has just made!

This, of course, is simply not an acceptable alternative to an appeal to another court.

The second problem concerns the wording of two of the offences in the 1973 act—the offences of genocide and of crimes against humanity,

The offence of genocide as set out in the 1973 act allows the offence to be committed if certain conduct is carried out ‘with intent to destroy, in whole or in part, a national, ethnic, racial, religious or political group.’

In 1972 the offence of genocide was not defined to include the destruction of a ‘political group’, and even now this is not the internationally recognised definition.

So in the context of the 1971 war, while the internationally recognised offence of genocide could be committed if there was, for example, an intent to destroy the Hindu population (a religious group), it cannot be committed if there was an intent to destroy those who, for example, sought the independence of Bangladesh (a political group).

This is important as if the prosecution decides to prosecute a person for genocide involving an alleged intention to destroy a ‘political’ group’, this would be in breach of Article 15 of the International Covenant on Civil and Political Rights. This provision only permits states to prosecute people for offences that were not recognised as crimes in the country at the time they were committed if the offence was considered criminal ‘according to the general principles of law recognised by the community of nations’ at that time.

And genocide through the destruction of a political group was not.

There are also similar difficulties with the offence of ‘crime against humanity.’ In 1973 international law principles required that, for the commission of the offence, the alleged criminal conduct should be ‘part of a widespread or systematic attack directed against any civilian population’. This wording, however, is not part of the 1973 act.

The additional phrase is important as it ensures that there is a clear difference, for example, between someone committing an individual murder on the one hand and a ‘crime against humanity’ on the other. Does the tribunal intend to incorporate these words into the meaning of the offence? It is anyone’s guess?

The most obvious way for the government to have dealt with the concerns relating to these two offences would have been to amend the 1973 act.

But the government did not do that.

Rapp suggested another way out of the problem by amending the rules of the procedure so that a document, produced by the International Criminal Court, called ‘Elements of Crimes’ could became a guide to the tribunal.

But again the tribunal did not do this.

The third problem, connected to the previous point, is that it remains unclear what law will be used by the tribunal to interpret the meaning of the offences in the 1973 act.

It would seem obvious that the tribunal would use the international case law which has been developed over the recent years by the UN-sponsored international tribunals.

But, nothing is stated specifically in the 1973 act or in the rules of procedure. The judges also have not stated their position in the court hearings and, significantly, to the extent that international law has been argued at all so far in the court, the tribunal members have either ignored it or rejected its application to the tribunal.

Connected with this is whether or not the tribunal will use the international case law to assist it in determining the probity of particular kinds of evidence.

Although Rapp states that the 1973 act’s broad rule on evidence was in line with other international statutes, he suggests that the tribunal should look towards ‘the decision of these [international courts] that have resolved evidentiary issues regarding similar crimes sometimes many years ago after their commission.’

It remains unclear whether the tribunal will do as Rapp suggests. No new rule was introduced to this effect—though, to be fair, Rapp said the tribunal would not necessarily have to make a rule change. However, the tribunal’s failure to make this explicit means that the basis upon which the tribunal will make decisions on the probity of the evidence remains uncertain.

Fourthly, the act and the rules continue to be in breach of certain provisions of the International Covenant on Civil and Political Rights which Bangladesh has ratified.

Article 14 (3)(b) of the covenant states that ‘adequate time and facilities for the preparation of defence’ should be provided; however, the tribunal’s amended rule allows the possibility of a trial taking place just three weeks after a not-guilty plea.

While the rules do say that three weeks is a ‘minimum’ time period given to the defence to prepare its case, the fact that the tribunal thought that it could ever be possible for a defendant to prepare his defence in three weeks seems to suggest that the tribunal will not provide ‘adequate time’ to the defendants as required by the ICCPR.

Moreover, Rapp noted that this particular provision of the ICCPR had been interpreted to mean that the accused is ‘strictly required’ to hand over any ‘exculpatory’ evidence—i.e. evidence that points to the innocence of an accused—that they have identified.

The tribunal had also not adopted any rule to that effect.

Article 14(3)(d) of the ICCPR states that everyone should have the right to defend themselves ‘through legal assistance of his own choosing’. The ICT rules do state that there is a right to ‘engage counsel of his choice’ but effectively prevents foreign counsel from appearing in the tribunal.

It has done this by making their presence in court contingent on consent of the Bar Council, which the tribunal must have known has long taken a view that it is not legally permitted to have non-Bangladeshis to appear in a Bangladesh court.

In a situation where there are no Bangladesh lawyers with experience of defending international criminal offences, the failure to explicitly allow foreign counsel is a significant omission. As Rapp stated, ‘The field of international crimes is highly specialised and the participation of foreign counsel, particularly those who have litigated cases in the international and hybrid courts and tribunals, is very important to ensure that uniform or generally agreed standards are observed in practice.’

Article 14 (2) of the ICCPR states that the accused ‘shall have the right to be presumed innocent until proved guilty.’ Although the tribunal has introduced a new rule that explicitly provides for the presumption of innocence, it is limited by another rule that states that if an accused relies on an alibi, the onus is on him to prove it. Rapp had proposed that that the tribunal change this, but it has not done so (though a new provision does at least say that a failure to prove his alibi cannot be the sole proof of his guilt.)

The fifth problem with the legal regime concerns the rights of the accused during questioning.

In his advice to the government, Rapp said it was normal international practice for a lawyer to be present during interrogations and for the questioning to be recorded.

During the ICT hearings themselves, the judges have argued that such requirements were not necessary as ordinary Bangladesh law did not allow any statement made during a police investigation to be admissible as evidence. It subsequently made a formal ruling to this effect in court.

It was expected that the tribunal would embed this position in the rules of procedure; however, instead of doing so, it introduced a new rule which states that while generally evidence during questioning is not admissible, any ‘part of the statement’ of an accused, made during the questioning, ‘which leads to discovery of any incriminating material’ would be admissible.

How this will work is very unclear, but one can see how easily it could be open to misuse, since the interrogation is not recorded and no lawyer is present during the interrogation.

The new rule would seem to allow investigators to claim that any aspect of the evidence that it found against a particular person had in fact been obtained following a statement made by an accused during the interrogation. They can then use this to justify making admissible prejudicial ‘statements’ allegedly made during the interrogation that the accused may well deny having made.

This clearly is problematic, and removes entirely the tribunal’s justification for prohibiting the presence of lawyers during the interogation.

It is also of concern that the tribunal has created a new rule of procedure which is in conflict with what it had previously stated in court to have been the legal position, and which may have retrospective effect.

And finally, there are concerns about the wider impact of Article 47A of the constitution which prevents any aspect of the 1973 act to be challenged as unconstitutional. So an accused person can neither challenge section 6(8) of the act which prevents the accused questioning the establishment of the tribunal or the appointment of judges nor challenge the way offences of genocide, or crimes against humanity, have been defined (mentioned earlier).

So there remains a long list of outstanding problems, some more significant than others, but which together mean that the tribunal remains quite a distance from meeting either international—or indeed national—standards.

Providing justice to the 1971 victims is an important goal. After forty years the government decision to set up a tribunal is one that every international human rights organisation has applauded.

Yet providing justice to the 1971 victims should not be achieved through an unfair trial process.

There is a very widespread and strongly held assumption in Bangladesh that those currently accused by the ICT are guilty of terrible crimes during the 1971 war.

This allegation is believed as many of the accused were involved in the leadership of the student wing of the Jamaat in 1971 which supported the cause of the Pakistan military, and by their alleged involvement in Al Badr, widely believed to have been involved in atrocities during the war.

The commonly held assumption that these accused men are guilty may well be correct. However, assumptions are not evidence and may, in fact, be exaggerations embellished down the years or indeed prove to be false.

The purpose of the tribunal is to provide a proper forum to assess the evidence provided by the prosecution and allow it to be properly tested.

In order to allow this to happen, one needs a tribunal that provides proper protections to the defence. And, currently, a number of important safeguards, provided by both domestic as well as international laws are absent from the existing tribunal.

The government accuses Jamaat-e-Islami of taking part in a ‘propaganda’ war to undermine the tribunal. Undoubtedly, since five of their leaders are currently accused of war crimes, the party is doing whatever it can do to undermine the trial. The party’s survival is to some extent at stake.

But, ironically, most of the ammunition for Jamaat’s ‘propaganda’ is given by the Bangladesh government.

It is not Jamaat that has brought together Amnesty International, Human Rights Watch, and International Centre for Transitional Justice, and Ambassador Rapp and other international lawyers to criticise the existing law.

It is the failure of the government to make the necessary legal changes.

And if the government wants to defuse the Jamaat ‘propaganda’, the government can easily do this, by making the changes that Rapp and others have suggested.

But, I think at this stage one can now be clear of one thing. It looks very likely that the government will not do that.

David Bergman is editor, special reports, New Age.

o o o

New Age, 8 August 2011

Int’l Crimes Tribunal: the age of reasons

There are many positive aspects to how the International Crimes Tribunal operates but its repeated failure to provide proper reasons for its decisions will continue to raise questions about its credibility, writes David Bergman in conclusion of a two-part essay

THE standards of a trial do not simply stand or fall on the adequacy of its laws and rules of procedure—though clearly these are important (‘Convicting the guilty or fair trial for the accused?’, New Age, August 6); they are also about how a court operates during its hearings.

There are without doubt many positive aspects to how the International Crimes Tribunal, which has the responsibility for holding the trials of those alleged to have committed international crimes during the 1971 war of independence, proceeds.

There is a spacious and clean courtroom, with prosecution and defence lawyers both allowed to fully present their arguments, in the presence of journalists, and they generally do so in a courteous and professional manner. The judges listen and ask questions. These are many of the hallmarks of a good quality court process.

However, despite these characteristics, there does remain a serious failing in the tribunal’s operation upon which its future credibility hangs: this is the lack of proper judicial reasoning on the part of the tribunal when making its decisions.

Judicial reasoning is fundamental to the process of justice. It involves not just summarising arguments made by the opposing parties and making decisions. That anyone can do.

It requires that decisions are made after assessing the arguments given by the counsel on different sides and determining why particular ones should succeed and others not. It also requires that the reasons for its thinking is set out in written orders.

And at present this does not happen at the tribunal.

Almost all of the judges’ orders, concerning the substantive matters which have been argued before it, fail to provide proper reasoning for the decisions. And because almost all the decisions accept the prosecution applications, it is the defence side which is currently being prejudiced by this practice.

In most of the orders, the judges do not even refer to a number of the arguments which have been placed before it by the defence lawyers.

Whether the decision made is correct or not is not directly the issue here—though, of course, failing to provide proper reasons for a decision inevitably raises questions about the correctness of the order.

What is the issue is the decision-making process. Anyone can make decisions. A genuine legal process requires more.

The problem is clear if we look at the decisions relating to bail.

On December 29, 2010, in relation to a bail application by Delwar Hossain Sayedee, the tribunal after summarising some of the arguments on both sides simply ruled that bail should be refused as ‘it is our view that some more time should be given to the prosecution to continue investigation.’

The tribunal members did not explain why it had this view, or why the investigation could not continue with Sayedee on bail on conditions set by the court which had been offered by his lawyers. The order does not even refer to, yet alone rule on, the arguments made by the defence lawyers relating to the application of the principles of bail as set out in international law.

On March 15, 2011, in relation to another bail application by Sayedee, the tribunal at least gave a reason why it would not give bail. It said that the investigation was continuing and if the ‘accused is enlarged on bail the Investigation Authority may face some difficulty as the accused is an influential person.’

However, in its order, the tribunal does not refer to the argument made by defence that there was no evidence that the accused had an ‘armed cadre force’, which the prosecution had earlier alleged, or that the police had not found any evidence to substantiate six general diaries filed at police stations alleging intimidation of witnesses. These are issues directly relevant to whether there was any evidence that the accused would interfere with the investigation.

And although the order does mention that Sayedee’s lawyers had stated that Sayedee was willing to ‘comply with certain conditions for bail,’ the order does not explain why, in its view, these were not considered sufficient to constrain the petitioner’s influence—since they would have prevented him from visiting the ‘crime areas’ and much more.

At least, though, the order this time did mention that the defence lawyers had referred to international law as part of their arguments – however again the tribunal did not explain why it thought that these were or were not applicable to the present circumstances.

On April 20, there was another ruling on an application by Sayedee for bail. This did engage with the defence argument that the petitioner’s health status required him to get bail, stating the jail authorities had been directed to provide proper health care inside the prison, and so bail was not required for this purpose.

However, the tribunal then ruled, ‘We do not find any new grounds for bail and when perusing the case diary we think prima facie case against him is present.’

Since the court had not engaged with many of the previous grounds argued by the defence, it is not really sufficient for the tribunal to simply say that there are no new grounds, and ignore the arguments.

In addition, this is the first time that the court, as part of its bail rejection, referred to whether or not a ‘prima facie case’ against the accused has been made out. In the past the defence lawyers had argued that there was no ‘prima facie’ case, but the tribunal did not previously respond to that argument at all when rejecting bail. If a prima facie case was a relevant issue why did the tribunal not mention it in the past? And why was this issue relevant now?

These questions need to be asked because it is wholly unclear what are the principles of bail upon which the tribunal is relying when it is making its decisions. It has not set these out in any of its orders.

On May 31, after a final investigation report had been submitted to the tribunal, the issue of Sayedee’s bail again came up. On this occasion, the defence made an additional argument: since the investigation was complete, and detention had initially been allowed to ensure the adequacy of the investigation, there was no need for the accused to be detained anymore, particularly because they had offered strict bail conditions.

Although the tribunal did mention in its order that this argument had been made by the defence, it did not respond to it. Was it a good argument or bad one? Who knows? It was not subject to any judicial assessment. All that the order stated was: ‘In view of the above facts and circumstances, we are not inclined to grant bail at this stage, accordingly prayer for bail is rejected.’ What were the above facts and circumstances? Well, it is not entirely clear, but the previous two paragraphs in the orders solely related to why the health condition of the accused could not be a reason for bail.

But what about all the other arguments that the defence had made in its arguments? The tribunal did not engage with these at all.

On July 14, the tribunal passed on order giving ‘cognisance’ to the charges that had been laid against Sayedee, and after this process was completed the defence lawyers again argued for his bail.

Apart from setting out all the arguments which it had previously put, the defence made some further additional arguments.

First, the lawyer said that since the tribunal had introduced a new rule of procedure which allowed it to pass orders to ensure the ‘protection of witnesses’, if the tribunal continued to have any concerns that witnesses would be influenced if the petitioner was given bail, it could always pass such an order.

Second, he said that international law principles made clear—referring to a number of specific cases and a ruling of the United Nations Human Rights Committee—that the seriousness of the offence for which a person is being charged could not alone be a reason for refusing bail.

Third, he argued that continuing detention was ‘arbitrary’ and therefore in breach of article 14 of the International Covenant on Civil and Political Rights (which the Bangladesh government had ratified) as it was not ‘reasonable and necessary’.

Fourth, he argued that the prosecution argument that bail should be refused as ‘we have to remember the brutality of 1971…we cannot ignore the pain of the countrymen during 1971’ should not apply since it breached the principle of innocence until proved guilty.

In making its decision, the tribunal did at least engage with the international law arguments by saying, ‘The examples stated by the counsel regarding the ICCPR were also considered by us. We are of the view the provisions do not give the accused right to get bail.’ However, the judges do not explain why the tribunal came to this conclusion.

Moreover, the tribunal’s order does not engage at all with the other arguments.

Similar problems are present in the bail rejection orders involving the other four detained Jamaat leaders—Nizami, Mojahid, Kamaruzzaman and Molla - but perhaps the most problematic decision in relation to their bail rejection relates to the one given on August 1.

This date was one year after all four accused had began their detention by order of the tribunal. The length of time the accused had been in detention was significant as at the end of June the tribunal had amended its rules of procedure so that an accused could only remain in detention for more than one year if there were ‘exceptional circumstances’.

The defence argued that there was no ‘exceptional’ circumstances—that no tsunami or anything else had happened that suggesting there were such circumstances – and in addition the prosecution had not presented any reasons for why the current situation was in their view ‘exceptional’. The prosecution responded by saying that the cases did not involve simply the offence of murder, but ‘a lot of civilians were killed. The mass killing was a planned one.’

In its decision, rejecting bail, the court said that it thought there were ‘exceptional’ circumstances – but failed to explain what these circumstances were. It did refer back in its order to the decision it had earlier made at the same hearing which had held that the period of investigation could be extended because there were ‘exceptional circumstances’. This implied that the same exceptional circumstances which justified it in allowing the investigation to continue—the fact that there was a lot of evidence to scrutinise—also justified the tribunal to refuse bail.

But how could the fact that there remained a lot of evidence to look at justify a decision to refuse bail, particularly when the tribunal had to determine that the circumstances were ‘exceptional’?

Was it the fact that the accused were being prosecuted for serious offences, that made the circumstances exceptional? Well, there is nothing exceptional about that in the context of the tribunal, since all the offences over which it has jurisdiction are very serious in nature. In any case, whatever might have been in the minds of the tribunal, was not set out in the order.

When bail can only be refused by a tribunal for ‘exceptional’ reasons, and the tribunal decides to refuse bail, it is incumbent on it to explain very clearly why it considers the situation to be ‘exceptional’. Its failure to do so is a fundamental one.

The tribunal seems to think that simply by saying something is ‘exceptional’, it’s work as a tribunal is done, that it does not need to give any reasons to justify why it has come to that conclusion. Judges have to give clear and articulate reasons.

This is not the first time, however, that the tribunal has made this kind of decision.

The rules of procedure state that the tribunal can only allow interrogations to take place if it considers that it is ‘indispensable’ to the investigation. It is unclear why the tribunal made such a rule, but since the test is part of the rules of procedure, which the tribunal itself drafted, the judges now have to follow it.

In its first order on this issue relating to the interrogation of Motiur Rahman Nizami and Ali Ahsan Mojahid on April 5, 2011, the tribunal did not even mention the word, let alone explain why it thought their interrogation was so crucial.

In its second order on April 19 relating to the interrogation of Salauddin Quader Chowdhury, the tribunal did at least mention the word ‘indispensable’, but simply said that ‘for proper investigation of this case, the committing of the accused person into the custody of the investigation officer for purpose of interrogation is indispensable.’ It did not explain why interrogation was an indispensable issue for the investigation of the case—a very legitimate question in light of the fact that no evidence obtained in interrogation was admissible (the rules of procedure have slightly changed since then on the issue of admissibility).

The issue came up again on April 21, when the lawyers of Nizami and Mujahid sought a revision of the order allowing their interrogation. The defence lawyers repeated their argument that there was no evidence before the tribunal that allowed them to make a judgement that the interrogation was ‘indispensable’. It also made a number of other arguments relating to the need for lawyers to be present during any interrogation.

However, in its order, all the tribunal stated was that ‘We are of the view that the points raised have already been decided in the earlier orders and there is nothing to be reviewed.’ While it may well have been the case that these issues had ‘been decided’ as the tribunal puts it, the reasons for those decisions remained unknown.

The lack of proper reasoning is a hall mark of this tribunal. The question is why is it not giving proper reasons?

One answer may be that this is simply a reflection of poor practices throughout the criminal justice system in Bangladesh.

If that is so, it is of great concern, requiring a significant overhaul of how court decisions are made in Bangladesh.

Whatever the reason, one would have certainly expected that the international crimes tribunal would have significantly upped its game from the norm, and ensured a higher standard—particularly since the judges to this tribunal only have seven cases to deal with, and hearings only take place a few times a month.

In the last few days, Dipu Moni, the country’s foreign minster, criticised the Economist for stating that the tribunal is ‘being used less as a path to justice than to crush an opposition Islamic party, Jamaat-e-Islami.’ She has accused the economist of being part of a propaganda exercise.

This may well have been an over-simplistic sentence on the magazine’s part, failing to appreciate that there are serious and legitimate allegations hanging over the conduct of these men in 1971. However, the government and the tribunal only have themselves to blame for independent observers coming to this conclusion.

The outside world has been very sympathetic and supportive of the idea that those who committed atrocities during the 1971 war should be held to account, and they have welcomed the idea of the tribunals. That support is, however, contingent on the tribunals being seen to be an independent and fair process.

The government needs to recognise that many of the criticisms that people make of the tribunal is not ‘propaganda’—and in many cases it comes from people who are very keen for the tribunal to succeed.

Yet, unless significant changes are made to the law and the tribunal’s operation, it is quite predictable—though unfortunate—that the criticisms will get even more shrill.


David Bergman is editor, special reports, New Age. He has a blog on the tribunal at