Shahbag Movement and the Mandatory Death Penalty for Alleged War Criminals in Bangladesh- The International Crimes Tribunal revisited
By: Dr. Sanoj Rajan, Associate Director, HPCR, Harvard University*
Recent mass movement in Bangladesh, demanding capital punishment for the accused war criminals before the International Crimes Tribunal (ICT) in Bangladesh and the subsequent amendment to the International Crimes Tribunal Act of 1973 (ICTA) by the Bangladeshi government on February 17, 2013, once again raises the much-debated question regarding the fairness of ICT’s prosecution.
The movement is named after Shahbag, a major neighborhood in Dhaka, the capital city of Bangladesh, where hundreds of thousands of Bangladeshis gathered demanding death penalty to Mr. Abdul Quader Mollah the second person to be convicted by ICT. The ICT was setup for trying the alleged atrocities committed during the 1971 Liberation War of Bangladesh where around three million people lost their life and rape of around two hundred thousand women occurred. Many of these women were subjected to sexual slavery, forced pregnancy and torture. The war created around ten million refugees, most of who had fled to India allegedly forcing India to get involved in the war. The ICTA provide for trial and punishment of any person irrespective of his nationality for crimes against humanity, crimes against peace, war crimes, genocide, violation of Geneva Conventions and other crimes under international Law committed during the 1971 Bangladesh liberation war.
At the time of its enacting in 1973, ICTA was considered as a bold step and a noteworthy development in international criminal law when the other world nations were shying away from the concept of an International Criminal Court. This reputation was fallen short of when the Pakistani prisoners of war accused of war crimes and crimes against humanity captured by Indian Army were released on the basis of an interim opinion given by International Court of Justice and subsequently through a mutual agreement between Pakistan and India. Further through several Bangladeshi national legislative and executive orders hindered prosecutions under ICTA and granted amnesty to many accused Bangladeshi nationals.
Though enacted in 1973, ICTA took almost four decades to constitute the tribunal, which came into force on 2010. After its constitution ICT made arrests without any formal charges and denied bail to the accused, which made international community to voice its concerns over the ICT’s ability to proceed with the trials in a fair and unbiased manner and provide protection to the witnesses. Above all there was a wide spread apprehension that the trials were politically motivated as five of the seven accused were members of Jamaat-e-Islami party and other two were from Bangladesh National Party both opposition parties to the ruling Awami league. The main criticisms faced by the ICTA at its initial period were as the following.
Though some were well founded many were not, most of these allegations were addressed and countered by ICT and the Bangladeshi government at that time. Now the stage has reached where the first two verdicts have come out, one a decision in abesntia awarding death penalty and the second one awarding life sentence to the convict.
The present controversy is associated with the ICT’s second decision sentencing Mr. Abdul Quader Mollah for life and following that a large section of people in Bangladesh came out to streets demanding death penalty for him. The subsequent amendment to the ICTA by the government to address this popular demand reopened the discussions regarding the fairness of the ICT. This new controversy has to be analyzed de novo and not be read along with the earlier criticism associated with the ICT and ICTA at its initial period, which were discussed and addressed once. The emergent controversy associated with the Shahbag movement and the new amendment passed on February 17, 2013 needs an independent analysis under the following heads.
The Demand for Mandatory Death Penalty for an already sentenced convict.
The popular demand and subsequent constitutional amendment seeking death penalty for Mr. Abdul Quader Mollah, who has already been sentenced to life imprisonment by the ICT is arbitrary deprivation of life in violation of article 6, paragraph 1 of the ICCPR. It would amount to a decision taken in circumstances where death penalty is imposed with out any possibility of taking into account the defendant’s personal circumstances or circumstances of the particular offence. In the present case it is very clear that Mr. Mollah has been convicted and sentenced to life imprisonment by a competent court is now exposed to a mandatory death penalty just because a section of the society thinks that the punishment awarded by the court is not sufficient. It is to be noted that under the ICTA the court is empowered to award death penalty under the original act; however it awarded life imprisonment after due process and considering the merits of the case. This is to be read in light of the popular demand and the political determination of the government to give death penalty to Mr. Mollah.
This point is further supported by the UN Special Rapporteur on extrajudicial, summary or arbitrary executions statement that "[t] he mandatory death penalty which precludes the possibility of a lesser sentence being imposed regardless of the circumstances, is inconsistent with the prohibition of cruel, inhuman or degrading treatment or punishment."
Retrospective application of the Amendment to Section 21 (1) of ICTA
Before the amendment, ICTA Section 21 provides for appeal by the convicted person to the appellate division of the Supreme Court of Bangladesh and at the same time it is silent on whether the state can do the same. The recent amendments to the ICTA incorporate the ability of the state to move the appellate court against the decision of the ICT and to decrease the time for an appeal to be completed. Many of the supporters of the Shahbag movement and the Government would claim that the amendment only rectifies a procedural anomaly in the act and now both the prosecution and defense are put to equal terms. But here the retrospective application of the governments right to appeal specifically, for imposing the death penalty for a particular person (presently Mr. Molla) amounts to clear violation of Article 15 (1) of ICCPR which mentions: “Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.” Here neither during the commission of the offence nor even during the trial there was any reference to mandatory death penalty to the convicts, hence the amendment runs contrary to the spirit of this Article, which in fact favors a lighter punishment through the retrospective application of a provision. In this case, on the contrary, government intends to seek enhancement of punishment. Nor the exception clause in Article 15 (2) under ICCPR applies here, which stands for prohibiting impunity and speaks of the justifications against nullum crimen, nulla poena sine praevia lege poenaliprinciple underlined through Nurumburg Trials and subsequently in Adolf Eichmann’s case.
Double Jeopardy
Though the present amendment enabling appeal by the State against the decision of ICT seems legitimate, it would amount to double jeopardy because of the alleged political intention of giving definite death penalty to Mr. Mollah. This intention is evident from the statements given by people holding high offices, for example Prime Minister Sheikh Hasina was reported by media as saying she would talk to the judges to convince them to take the sentiments of the protesters into account in formulating their decisions. When the bill was offered in parliament, the deputy speaker welcomed it by saying, “This is the voice of parliament.” Protesters in Shahbag have called for Jamaat and its student wing, Islami Chhatra Shibir, to be banned, and for further amendments of the ICT law to prohibit presidential pardons for those convicted by the ICT, and to permit closure of Jamaat-related businesses and media outlets. This all point toward a definite political intention to give death penalty to Mr. Mollah. The gravity aggravates when it is read along with the constitutional amendments especially the one through Article 47 (A) which takes always the fundamental rights of the war crimes accused otherwise available to a Bangladeshi citizen. Article 47 (3) further prohibits the war crimes accused from approaching appropriate forums against ex post facto laws, right to speedy, fair trial and the ability to enforce guaranteed rights under the constitution. Hence reconsidering the sentence awarded by the ICT through a retrospective amendment would amount to double jeopardy as the conviction process has been completed by the pre-amended ICTA. This point is further supported by article 75 (3) (h) of Additional Protocol I to the Geneva Conventions, which says, “no one shall be prosecuted or punished by the same Party for an offence in respect of which a final judgment acquitting or convicting that person has been previously pronounced under the same law and judicial procedure.”
Conclusion
It is widely accepted that a national level prosecution of grave international crimes helps in promoting self-reckoning and reconciliation in the aftermath of violent conflicts. It also equips the state in the painful search for its lost identity due to the atrocities committed. But at the same it has to be made sure that in that process of reconciliation (both physical and emotional), the state should not forget to deliver justice in a fair and equitable manner. It may be true that the prosecuted war criminals under the ICT might have had committed the crimes alleged, but it should not be an excuse for the state to deny them a diligent due process and fair trial.
*NOTE: This article was originally posted in the official blog of Program on Humanitarian Policy and Conflict Research, Harvard University. It is being reproduced with the Author’s permission who holds exclusive rights over its use and distribution.
Recent mass movement in Bangladesh, demanding capital punishment for the accused war criminals before the International Crimes Tribunal (ICT) in Bangladesh and the subsequent amendment to the International Crimes Tribunal Act of 1973 (ICTA) by the Bangladeshi government on February 17, 2013, once again raises the much-debated question regarding the fairness of ICT’s prosecution.
The movement is named after Shahbag, a major neighborhood in Dhaka, the capital city of Bangladesh, where hundreds of thousands of Bangladeshis gathered demanding death penalty to Mr. Abdul Quader Mollah the second person to be convicted by ICT. The ICT was setup for trying the alleged atrocities committed during the 1971 Liberation War of Bangladesh where around three million people lost their life and rape of around two hundred thousand women occurred. Many of these women were subjected to sexual slavery, forced pregnancy and torture. The war created around ten million refugees, most of who had fled to India allegedly forcing India to get involved in the war. The ICTA provide for trial and punishment of any person irrespective of his nationality for crimes against humanity, crimes against peace, war crimes, genocide, violation of Geneva Conventions and other crimes under international Law committed during the 1971 Bangladesh liberation war.
At the time of its enacting in 1973, ICTA was considered as a bold step and a noteworthy development in international criminal law when the other world nations were shying away from the concept of an International Criminal Court. This reputation was fallen short of when the Pakistani prisoners of war accused of war crimes and crimes against humanity captured by Indian Army were released on the basis of an interim opinion given by International Court of Justice and subsequently through a mutual agreement between Pakistan and India. Further through several Bangladeshi national legislative and executive orders hindered prosecutions under ICTA and granted amnesty to many accused Bangladeshi nationals.
Though enacted in 1973, ICTA took almost four decades to constitute the tribunal, which came into force on 2010. After its constitution ICT made arrests without any formal charges and denied bail to the accused, which made international community to voice its concerns over the ICT’s ability to proceed with the trials in a fair and unbiased manner and provide protection to the witnesses. Above all there was a wide spread apprehension that the trials were politically motivated as five of the seven accused were members of Jamaat-e-Islami party and other two were from Bangladesh National Party both opposition parties to the ruling Awami league. The main criticisms faced by the ICTA at its initial period were as the following.
- The ICTA was adopted in 1973 and was fashioned in Nuremburg model and International Criminal Law has developed since then. To ensure justice, the jurisprudence and interpretations of various ad hoc international tribunals and the International Criminal Court at The Hague should be incorporated in the ICTA.
- The amendments to the Constitution of Bangladesh, especially article 47(3) and 47A took away major constitutional protections to the accused under the ICTA. These amendments are discriminatory and gross violation of the International Covenant on Civil and Political Rights (ICCPR) to which Bangladesh is a party.
- The lack of provision for appeal on interim/interlocutory orders, this was mooted especially considering the fact that five accused were arrested with out any formal charges and they were detained till the end of the post-conviction stage and hence devoid of any appeal remedy.
- Challenges of retroactive application of the ICT, even though all the ad hoc international criminal trials so far, except the International Criminal Court had retroactive application of law.
- No provision for challenging the jurisdiction of the ICT.
- The reversal of burden of proof in case of alibi defense.
- Death penalty which seems inconsistent with the Bangladesh’s treaty obligation under the ICCPR
Though some were well founded many were not, most of these allegations were addressed and countered by ICT and the Bangladeshi government at that time. Now the stage has reached where the first two verdicts have come out, one a decision in abesntia awarding death penalty and the second one awarding life sentence to the convict.
The present controversy is associated with the ICT’s second decision sentencing Mr. Abdul Quader Mollah for life and following that a large section of people in Bangladesh came out to streets demanding death penalty for him. The subsequent amendment to the ICTA by the government to address this popular demand reopened the discussions regarding the fairness of the ICT. This new controversy has to be analyzed de novo and not be read along with the earlier criticism associated with the ICT and ICTA at its initial period, which were discussed and addressed once. The emergent controversy associated with the Shahbag movement and the new amendment passed on February 17, 2013 needs an independent analysis under the following heads.
The Demand for Mandatory Death Penalty for an already sentenced convict.
The popular demand and subsequent constitutional amendment seeking death penalty for Mr. Abdul Quader Mollah, who has already been sentenced to life imprisonment by the ICT is arbitrary deprivation of life in violation of article 6, paragraph 1 of the ICCPR. It would amount to a decision taken in circumstances where death penalty is imposed with out any possibility of taking into account the defendant’s personal circumstances or circumstances of the particular offence. In the present case it is very clear that Mr. Mollah has been convicted and sentenced to life imprisonment by a competent court is now exposed to a mandatory death penalty just because a section of the society thinks that the punishment awarded by the court is not sufficient. It is to be noted that under the ICTA the court is empowered to award death penalty under the original act; however it awarded life imprisonment after due process and considering the merits of the case. This is to be read in light of the popular demand and the political determination of the government to give death penalty to Mr. Mollah.
This point is further supported by the UN Special Rapporteur on extrajudicial, summary or arbitrary executions statement that "[t] he mandatory death penalty which precludes the possibility of a lesser sentence being imposed regardless of the circumstances, is inconsistent with the prohibition of cruel, inhuman or degrading treatment or punishment."
Retrospective application of the Amendment to Section 21 (1) of ICTA
Before the amendment, ICTA Section 21 provides for appeal by the convicted person to the appellate division of the Supreme Court of Bangladesh and at the same time it is silent on whether the state can do the same. The recent amendments to the ICTA incorporate the ability of the state to move the appellate court against the decision of the ICT and to decrease the time for an appeal to be completed. Many of the supporters of the Shahbag movement and the Government would claim that the amendment only rectifies a procedural anomaly in the act and now both the prosecution and defense are put to equal terms. But here the retrospective application of the governments right to appeal specifically, for imposing the death penalty for a particular person (presently Mr. Molla) amounts to clear violation of Article 15 (1) of ICCPR which mentions: “Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.” Here neither during the commission of the offence nor even during the trial there was any reference to mandatory death penalty to the convicts, hence the amendment runs contrary to the spirit of this Article, which in fact favors a lighter punishment through the retrospective application of a provision. In this case, on the contrary, government intends to seek enhancement of punishment. Nor the exception clause in Article 15 (2) under ICCPR applies here, which stands for prohibiting impunity and speaks of the justifications against nullum crimen, nulla poena sine praevia lege poenaliprinciple underlined through Nurumburg Trials and subsequently in Adolf Eichmann’s case.
Double Jeopardy
Though the present amendment enabling appeal by the State against the decision of ICT seems legitimate, it would amount to double jeopardy because of the alleged political intention of giving definite death penalty to Mr. Mollah. This intention is evident from the statements given by people holding high offices, for example Prime Minister Sheikh Hasina was reported by media as saying she would talk to the judges to convince them to take the sentiments of the protesters into account in formulating their decisions. When the bill was offered in parliament, the deputy speaker welcomed it by saying, “This is the voice of parliament.” Protesters in Shahbag have called for Jamaat and its student wing, Islami Chhatra Shibir, to be banned, and for further amendments of the ICT law to prohibit presidential pardons for those convicted by the ICT, and to permit closure of Jamaat-related businesses and media outlets. This all point toward a definite political intention to give death penalty to Mr. Mollah. The gravity aggravates when it is read along with the constitutional amendments especially the one through Article 47 (A) which takes always the fundamental rights of the war crimes accused otherwise available to a Bangladeshi citizen. Article 47 (3) further prohibits the war crimes accused from approaching appropriate forums against ex post facto laws, right to speedy, fair trial and the ability to enforce guaranteed rights under the constitution. Hence reconsidering the sentence awarded by the ICT through a retrospective amendment would amount to double jeopardy as the conviction process has been completed by the pre-amended ICTA. This point is further supported by article 75 (3) (h) of Additional Protocol I to the Geneva Conventions, which says, “no one shall be prosecuted or punished by the same Party for an offence in respect of which a final judgment acquitting or convicting that person has been previously pronounced under the same law and judicial procedure.”
Conclusion
It is widely accepted that a national level prosecution of grave international crimes helps in promoting self-reckoning and reconciliation in the aftermath of violent conflicts. It also equips the state in the painful search for its lost identity due to the atrocities committed. But at the same it has to be made sure that in that process of reconciliation (both physical and emotional), the state should not forget to deliver justice in a fair and equitable manner. It may be true that the prosecuted war criminals under the ICT might have had committed the crimes alleged, but it should not be an excuse for the state to deny them a diligent due process and fair trial.
*NOTE: This article was originally posted in the official blog of Program on Humanitarian Policy and Conflict Research, Harvard University. It is being reproduced with the Author’s permission who holds exclusive rights over its use and distribution.