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Monday, May 30, 2016, Jaistha 16, 1423 BS, Shaban 22, 1437 Hijri

Pakistan's role in Bangladesh war crimes will always haunt them
Dipanjan Roy Chaudhury
Published :Monday, 30 May, 2016,  Time : 12:00 AM  View Count : 660
An article was published in the Pakistani daily Dawn titled "Bangladesh on Trial" (18 May 2016) by Ahmer Bilal Soofi on Bangladesh's attempts to seek justice and closure for the grave crimes committed during the Liberation War in 1971. The article is full of distortion, half-truths and outright lies.
Soofi starts by saying: "The atrocities perpetrated by all the sides in East Pakistan in 1971 were reprehensible. For its excesses, Pakistan expressed regret to the people of Bangladesh in 2002, with a desire to bury the ghosts of the past and forge robust ties for the future."
There were not many sides to the conflict in 1971. On the one hand was the powerful military of West Pakistan aided in arms by their local collaborators and killings squads such as Razakar, Al-Badr and Al-Shams. Such local collaborators were mostly made up of recruits from the Jamaat-E-Islami and their then student wing, Islami Chhatro Shangha (predecessor to the Islami Chhatro Shibir). On the other hand, there were the unarmed Bangali civilians, led by Sheikh Mujibur Rahman and the Awami League. Atrocities were committed by the Pak Army and their local collaborators on the unarmed Bangali civilian population.
Pakistan may have expressed regret to the people of Bangladesh in 2002, but does that exonerate those who stand accused or convicted of the gravest crimes such as genocide, murder, rape, looting, arson, forced conversions and forced displacements. The only thing which can "bury the ghosts" as suggested by Soofi is actually justice. That is precisely what Bangladesh is attempting to do by setting up the International Crimes Tribunals (ICT-BD).
In the midst of his propagandist rhetoric on history and contemporary events, Soofi also makes the erroneous suggestions that Bangladesh is in "violation of the 1974 Tripartite Agreement" by holding the war crimes trials four decades after the genocide takes place.
Soofi, as his article suggests, was once the Federal Law Minister. The 1974 agreement never pardoned or excused the crimes of the Pakistani prisoners of war (POWs). Bangladesh handed over the war crimes alleged POWs to Pakistan on the understanding that they would be made to stand trial in Pakistani courts of law.
Soofi makes it sound like Bangladesh is unique in holding criminals to account for crimes long after such crimes were committed. Even today, war criminals of the Nazi regime of Germany are being tried for crimes committed during the Second World War, a gap of nearly sixty years.
Soofi then goes on to attack the credibility of the trials in Bangladesh aggressively, calling it a "mockery of justice". He states that the accused in the ICT-BD do not have the right to bail, which is factually wrong. Accused in the ICT-BD do have the right to bail under Rule 34(2) of the ICT Rules of Procedure. Whether in fact, the Tribunals grant bail to any particular accused would depend on whether there is any significant flight risk, among others. Furthermore, there is also the right to bail if investigation is not completed within a specified period under Rule 9(5).
Right after the ICT-BD started trial of Abul Kalam Azad (aka Bachchu Razakar), the accused absconded. Convicted war criminals Mueenuddin in UK and Ashrafuzzaman in USA never came to Bangladesh to stand trial and challenge the allegations against them. In addition, the gravity of the crimes being alleged and the potential sentence once convicted also give substantial reasons to fear that if given bail the accused war criminals in Bangladesh could have absconded or fled to another country.
Convicts can appeal against both their convictions and sentences in the highest court of the land, the Appellate Division of the Supreme Court of Bangladesh. Not only that, once the appeal decision is given from the SC, there is the scope then to review the decision. This is a de-facto two-tier appeals system. Soofi, being a previous federal law minister, should be able to appreciate that such a appeals system cannot be termed as "limited" no matter which legal system we take as a benchmark.
Hearsay evidence is not only admissible in the ICT-BD, but also in general criminal proceedings in Bangladesh, Pakistan and most countries in the world. This is especially true for historical crimes, where the availability of direct evidence is that much more difficult. The International Tribunals set up the UN or backed by it themselves admit hearsay evidence. While their evidentiary weight may not be as significant as direct evidence such as oral testimony, their admissibility cannot be a reasonable point to substantiate the claims made by Mr Soofi.
Soofi talks about intercepted communications between the judges and prosecutions. When in reality, the issue of communications during the Delwar Hossain Sayeedi trial was actually between the judge in question and an international law expert. In any event, following the revelations of the communications, the judge recused himself from hearing the case anymore and was replaced by another judge, who then pronounced judgment and sentence on Sayeedi.
No retrospective legislation was enacted hurriedly. In February 2013, the Bangladesh Government moved to the Parliament to amend the International Crimes (Tribunals) Act 1973 as the right of appeal was unequal for the prosecution and defence. While the defence could appeal against both conviction and sentence, the prosecution could only appeal against acquittal and not against sentence which it considers lenient. This is a standard appeals format followed almost everywhere in the world. Therefore, the amendment in question simply brought the appeals entitlements of both prosecution and the defence on an equal footing, and did not give any undue advantages to the prosecution.
Soofi makes an issue out of the fact that defence witnesses have been restricted by the ICT-BD. This is an over simplification of a legal issue. The judge in any case has to adjudicate the relevance of any witness or evidence before admitting it in proceedings.
Take the case against Salahuddin Quader Chowdhury for example. The convicted war criminal attempted to make a mockery of the process by submitting a voluminous list of 1,153 witnesses. The Tribunal had restricted their number of witnesses to 5 only based on their relevance. In any event, the defence in that case subsequently could only however, examine 4 of the allotted 5 witnesses and failed to produce the fifth witness.
Soofi then argues that the restriction on constitutional protection for war crimes accused under Article 47(A) of the Bangladesh Constitution "essentially strips the accused before the ICT of certain fundamental rights, including the right to an expeditious trial by an independent, impartial tribunal, and the right to move the courts to enforce fundamental rights". It should be noted that this constitutional restriction has not been imposed by the current government but was added in 1973 via Section 3 of the Constitution (First Amendment) Act. Does this restriction deter any war crimes accused from the right to an expeditious trial by an independent and impartial tribunal? No, as these are specifically addressed in the International Crimes (Tribunals) Act 1973. It provides that the trial has to be held in a fair, impartial and independent tribunal [Section 6(2)] and the accused has the right to an expeditious [Section 11(3)(a)] and public hearing [Section 10(4)].
While the normal rules and procedures under the Criminal Procedure Code, 1898 and the Evidence Act, 1872 indeed do not apply in any proceedings under the 1973 Act, as referenced above, the government formulated the equally exhaustive International Crimes Tribunals Rules of Procedure 2010. The Rules provide equally efficacious rules as the general rules of procedure and evidence in Bangladesh. Hence, it is dishonest to highlight the inapplicability of the general rules of procedure and evidence as being somehow detrimental to the interests of the accused.
Soofi then goes on to make the fictitious claim that the government forces abducted a key witness in the Sayeedi trial. The name of that particular witness is Sukharanjan Bali, who was not abducted, but rather went off voluntarily to India to meet his relatives. This is not the version of the government but was reported by BBC in May 2013 ("Missing witness Sukharanjan Bali's documents contain no mention of abduction", BBC Bangla, 16 May, 2013).
Soofi particularly points out the alibi defence of Salahuddin Quader Chowdhury, which he claims failed as a result of the obstruction of the government. It is widely documented that Chowdhury's plea of alibi was full of holes which did not stand the test of veracity not only by the ICT-BD but also in the Supreme Court of Bangladesh ("SQC Trial: Why plea of alibi failed", the Daily Star, 22 November 2015). In any event, his trial strategy was based more on causing obstruction, delay and offence as opposed to any meaningful defence in the real sense ("SQC Trial: Strategy of obstruction, delay and offence", bdnews24, 22 November 2015).
While Soofi points out the comments made by the Chief Justice regarding quality of investigation and prosecution during the appeal proceedings of Mir Quasem Ali, he fails to mention that the same bench of the Supreme Court headed by the same Chief Justice found that there were sufficient evidence to uphold the convictions and/or sentence of Mir Quasem Ali. This can only mean that in the eyes of the judges in question, the shortcomings were not adequate enough to render Mir Quasem Ali's conviction and sentence unsafe.
Soofi concludes by saying that "Pakistan must raise this issue at bilateral, regional and international levels to ensure that Bangladesh honours its international legal obligations by immediately halting these flawed trials as well as quashing all outstanding sentences pronounced by the war crimes tribunal". The demands, due to its sheer outrageousness, demand no further response. Pakistan has enough on its plate as far as breach of international legal obligations is concerned, and they would better to address them then shed for convicted war criminals in Bangladesh.
What he calls mockery of justice is one of the most popular legal processes in the history of Bangladesh. All public opinion polls carried out by independent organizations have shown consistently the overwhelming majority support enjoyed by the war crimes trials in Bangladesh. The current government in Bangladesh came to power in 2009 with the popular mandate of holding criminals to account for their misdeeds in 1971, and it would continue to do so without fear or favour.
Soofi feels that stopping the trials would uphold international law and enhance peace and stability in South Asia, whereas in reality international norms, peace and stability would be ensured if Pakistan stops interfering in the internal legal and political matters of its neighbours and upholds its commitment to regional agreements, such as holding the trials of the 195 Pakistani war criminals as per the 1974 Tripartite Agreement.

This article was first published in "The Economic Times" on 27 May, 2016

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