IHRC report on the implementation of the international covenant on civil and political rights in Bangladesh
The human rights situation in Bangladesh has deteriorated dramatically since the 2008 general elections when the currently ruling Awami League came to power. It's tenure has been characterised by a witchhunt against the opposition, particularly the Jammat-e-Islami and the Bangladesh National Party. An International Crimes Tribunal has targeted the leadership of these groups while others have been subjected to harassment, abduction, detentions, and the imposition of curbs on their freedom of expression and movement.
At the same time the state has continued to oppress the Rohingya refugees of Burma who have sought sanctuary in Bangladesh from violence in their homeland, subjecting them to appalling living conditions, failing to protect them from violence, sexual and labour exploitation, refusing to recognise them as refugees, preventing new refugees from arriving and also seeking to forcibly repatriate them.
INTERNATIONAL CRIMES TRIBUNAL
The International Crimes Tribunal (ICT) was set up in 2010 by the ruling Awami League, ostensibly to investigate atrocities carried out during the 1971 liberation war in which Bangladesh seceded from Pakistan.
The war involved widely-documented massacres, torture, displacement, destruction and confiscation of property, disappearances, and sexual violence. While no systematic accounting was ever done, it is accepted that at the very least hundreds of thousands, if not several million, were killed.
In response, the International Crimes (Tribunals) Act (ICTA) was passed in 1973 "to provide for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes, and other crimes under international law." However, then Prime Minister Mujib declared a general amnesty for all Bangladesh citizens who had collaborated with West Pakistan except those accused of murder, rape, arson, or genocide. Eager to draw a line under the events and heal the country's deep wounds successive governments elected not to pursue those responsible.
In 2008 then Prime Minister Sheikh Hasina ran on a campaign to prosecute "the war criminals" from the Liberation War. After her victory and with the Awami League in power, Deft amendment of the 1973 Act in 2009 added the new category of "individuals" to the original ICTA targets of anti-liberation armed forces and auxiliary personnel. Now, with this loophole in place, what was originally drafted in 1973 as a vehicle to prosecute military excesses during the conflict had assumed the appearance of a means of pursuing pre-selected civilian targets 40 years later.
Nearly all of those accused are opponents of the Awami League, mainly members of the Jamaat-e-Islaami and the Bangladesh National Party (BNP). Considering that Jamaat actively opposed independence in 1971, and that their alliance with the BNP ensured the Awami League's defeat at the 2001 election, questions arise as to whether the Awami League-sponsored ICT may, after all, have more sinister motives other than bringing those responsible for the events of 1971 to justice.
ICT NOT UP TO MODERN STANDARDS
Firstly the ICTA has been resurrected in almost unchanged form from its enactment in 1973. For the Act to be revived almost 40 years later in virtually unchanged form suggests, at best, that the government has little interest in conforming with modern standards – despite being a State Party to the International Criminal Court and a signatory to the International Covenant on Civil and Political Rights.
A detailed exposition of ICTA's many excesses would be too lengthy here. In summary its pre-trial provisions confer rights on government appointed investigators to detain and question any person without notice; there is no statutory right to any form of prior disclosure to the suspect, no right to silence in interview, and there is no right to have a lawyer present.
Concluding his third visit to Dhaka in November 2011, US Ambassador-at-Large for War Crimes Issues Stephen Rapp stated that while some of his recommendations for amending the ICT's rules to 'ensure fair and transparent proceedings' had been implemented, many had not. Rapp suggested that 'crimes against humanity' be properly defined, that the accused be accorded the same rights as citizens charged with other violent crimes, and that prosecution and defence witnesses be protected. He also says the trials should be more accessible to the public. (http://www.ibanet.org/Article/Detail.aspx?ArticleUid=AA9E9993-62BA-4E44-A177-DF51CA884C19)
EXECUTIVE INTERFERENCE IN JUDICIARY
The Act's impact on the trial process itself is equally disturbing. As with investigators, all judges on the Tribunal panel are to be appointed
by the government; proceedings may continue in a judge's absence, and there is no right to challenge judicial appointments. Judges have an unfettered right to question witnesses with no right for defence counsel to re-examine. Fundamental rules of evidence are dispensed with entirely: the 1872 Evidence Act, and the 1898 Criminal Procedure Code, largely derived from the statute that until recently governed English proceedings and which continues to govern the rules of evidence and procedure in Bangladesh's domestic criminal courts, are specifically outlawed by ICTA for the Tribunal's purposes. Remarkably, ICTA deliberately provides for the admissibility of newspaper articles, film, radio and other media reports as evidence, notwithstanding the natural tendency in the press to exaggeration, and the fact that such material will inevitably be incapable of forensic scrutiny.
NO JUDICIAL OVERSIGHT
In the event of a controversial ruling by the bench, Article 47(3) of the Bangladesh Constitution, an amendment incorporated in 1973, removes any right for interlocutory appeal from the Tribunal to a separate or higher court. Indeed, the only right to appeal provided within ICTA is that against conviction and sentence to the Bangladesh Supreme Court. Whilst the Tribunal is empowered to entertain a review of its own decisions, results have proved predictable: the Tribunal has been disinclined thus far to overrule its own judgment.
INTERROGATION AND ADMISSIBILITY OF EVIDENCE
The ICT's rules do not incorporate procedural safeguards to regulate the interrogation of accused persons similar to the rules of the Rwanda
and Yugoslavia tribunals. The Rwanda tribunal rules require that the interrogation of the accused persons be video-taped or audio-taped so as to ensure that evidence tainted by coercion, duress and undue influence is not admitted. They guarantee the right of an accused person to have a counsel of his choice present during interrogation. Unfortunately, such provisions have not been incorporated in the Bangladesh Tribunal Rules. The Tribunal may admit any documents or their photocopies as evidence if such documents initially appear to have probative value. "Probative value" has not been defined and no objective test has been laid down for determining it. Thus, even fourth-degree hearsay evidence may be received as evidence.
The time given by the Rules to the accused to prepare his defence, three weeks, is grossly inadequate and contrary to international standards. He has to respond to charges of genocide and crimes against humanity allegedly committed over 40 years ago. In contrast, the Investigation Agency is given one year from the time of arrest of the accused person to conduct its investigation, and this may be extended by a further six months by the Tribunal. Three weeks falls far short of normative practices in various international tribunals, where the defence typically receives several months to prepare after detailed receipt of the Prosecution's witness statements and other evidence.
INTERFERENCE WITH WITNESSES
The ICT has been beset with claims of interference with witnesses. Perhaps the most well-known is that of Shukaranjan Bali.
Bali was originally listed as a prosecution witness in the case of defendant Delwar Hossein Sayedee but disappeared in November 2012, on the day he was purportedly set to testify for the defence. According to defence lawyers, plain-clothes police officials apprehended Bali outside the tribunal, took him to a nearby vehicle and drove him away. Bali was a key prosecution witness who had been 'somehow managed' and became a defence witness, and neither the tribunal nor the prosecution knew he would be at court that day. Bali is the brother of one of the men whom the Jamaat-e-Islami leader was accused of murdering. He claims he was abducted from outside the tribunal gates as he was on the way to provide testimony on behalf of Sayedee. Some months later Bali turned up in an Indian jail where he said that law enforcement officers had taken him from outside the court, detained him for six weeks and then dumped him over the Indian border.
The Ameer (leader) of the Bangladesh Jamaat-e-Islami Maulana Motiur Rahman Nizami is a world-renowned Islamic leader. His pioneering role in the struggle for democracy in the country is a matter of public record. He has always been at the forefront of many popular movements, including the Islamic education movement, anti-dictatorship movement, and the movement for the introduction of a caretaker government. He was first elected a Member of Parliament in 1991. After his re-election in 2001, he was appointed first as Minister of Agriculture and then as Minister of Industries. During his period as government minister, he initiated many activities to help develop economically backward areas.
Mr Nizami's trial, like the others that preceded it, has been beset with controversy relating to the admission of hearsay evidence, inconsistency of prosecution witnesses, failure to allow cross-examination of prosecution witnesses, and draconian limits placed on the number of witnesses the defence could present in court while no limits applied to the prosecution.
Mr Nizami is charged with 16 counts of war crimes including murder, rape, looting, abetment and the massacre of Bengali intellectuals.
Evidence corroborating Mr Nizami's assertion that he was not present in the location of some of the crimes of which he is accused has been discounted by the judges. Prosecution witnesses give widely differing accounts of Mr Nizami's whereabouts and some even categorically recall Mr Nizami not being present at the site of the atrocities.
There is evidence to show that prosecution witnesses have been pressurised by the government and tutored by the prosecution and compelled to testify against the Appellant.
The defence's counsel has also been subject to harassment and intimidation by the government. Asad Uddin, a key member of the defence team in the war crimes trial against Motiur Rahman Nizami, was travelling to his hometown in Sirajganj when he was detained on October 22, 2015, at around 2:30 p.m. According to an eyewitness, armed men in both police uniforms and plainclothes stopped the bus he was travelling on immediately after it had crossed the Jamuna River Bridge. They identified themselves as members of the detective branch of the police and detained Uddin. The bus driver and some other eyewitnesses on the bus immediately notified Uddin's family, who tried to register a complaint with the police. The police rejected the application, and denied having him in custody in spite of credible evidence obtained by his family that he was being held in the detective branch of the Sirajganj Police Station.
That evening, uniformed police raided the house of another defence counsel, Mohammad Shishir Manir, stating to those present that they were there to arrest him. They left after not finding Shishir at home. Shortly after, men in plainclothes, who identified themselves as members of the detective branch, again entered Shishir's home, detained his driver, and questioned him for several hours before releasing him.
On October 25, Asad Uddin was produced before the Chief Metropolitan Magistrates Court in Dhaka, where police argued that they needed more time to question him because they suspected a conspiracy to "overthrow the government and obstruct the war crimes trials." On October 26, the magistrate remanded Uddin to two days remand in Dhaka Central Jail.
On February 5, 2013, the former assistant secretary general of the Jamaat-e-Islami and two times MP, Abdul Quader Mollah was sentenced to life in prison by the ICT. He was convicted on five of six counts, including murder and rape as crimes against humanity and war crimes. He was acquitted on one count of murder. Government officials, members of the ruling Awami League party, and segments of the public reacted with outrage that Mollah was not sentenced to death. Large crowds assembled in the Shahbag area of Dhaka demanding the death penalty.
The government responded by proposing amendments to the ICT law, allowing the prosecution to appeal the sentence and decreasing the time for an appeal from 90 days to 60 days. Until the Mollah case, the prosecution was only allowed to appeal if the accused was acquitted. 90 days were allowed for appeals. The amendments were adopted on February 17, 2013. On September 17, 2013 the Appellate Division of the Supreme Court reversed the life sentence on Mollah and imposed the death penalty. The amendments are a clear violation of the International Covenant on Civil and Political Rights (ICCPR), to which Bangladesh is a state party, which prohibits the retroactive application of criminal law.
Abdul Quader Mollah was hanged on 12 December 2013.
AWAMI LEAGUE'S UNDERMINING of INDEPENDENT JUDICIARY
One of the Awami League government's first acts after coming to power in the 2008 general elections was to do away with the Supreme Judicial Commission, set up to help ensure that senior appointments to the judiciary remain outside the control of the executive. Although the Commission was arguably unsuccessful in doing this, it nevertheless stood as a symbolic reminder of the need for separation of executive and judicial arms of government.
Successive Awami League governments have deliberately packed the higher levels of the judiciary with those lawyers closely affiliated with the ruling party. To date the Awami League has appointed scores of judges to the High Court Division of Bangladesh. However, the criteria for appointing these judges to the High Court Division of the Supreme Court has, in most cases, not been by merit, but allegiance to the regime. Out of the 17 judges who received appointment to the High Court Division in April 2010, nine had achieved only a Third Class in their LLB exams, while 13 had Third Class/Division in more than one of the public exams.
Furthermore, several of these judges who were actively involved with the Bangladesh Awami Lawyers Association, a platform of pro-Awami League lawyers, did not have any experience practising in the Appellate Division of the Supreme Court. Two of these judges — Ruhul Quddus Babu and M. Khasruzzaman — are accused of committing very serious offences in the past. Mr. Ruhul Quddus Babu, who was educated in the University of Rajshahi, is one of the prime accused in a case concerning the murder of a top activist from a student organisation at the University of Rajshahi in 1988. On the other hand, M. Khasruzzaman was involved in vandalism that took place on the Supreme Court premises on 30 November 2006. In fact, he was photographed by the leading newspapers of the country kicking the door of the Chief Justice's Office. Taking into account the seriousness of these charges brought against the two judges, the then-Chief Justice Mohammad Fazlul Karim, in an unprecedented move in the judicial history of the country, decided against administering the oath of office to these two judges citing 'unavoidable reasons.' Such a bold move on the part of the Chief Justice of Bangladesh to improve the image of the judiciary deeply embarrassed the government. However, the government ultimately managed to secure the administration of oaths to these two controversial judges nearly six months after their appointment when Justice Karim's tenure as the Chief Justice came to an end and Justice ABM Khairul Haque took over the helm of the Office of Chief Justice.
It is clear that instead of strengthening and protecting its independence, Awami League governments have seen the judiciary as an effective tool with which to attack the political opposition. Successive Awami League governments have deliberately packed the higher levels of the judiciary with those lawyers and judges closely affiliated with the ruling party. This has dangerous consequences. The appointment of an unsuitable persons of doubtful competence as judges on the basis of political or personal favouritism is bound to produce irreparable damage not only to the fair administration of justice, but also to public faith in the administration of justice.
The natural death of the Supreme Judicial Commission of Bangladesh and the consequent patronage appointments to the Bench: Advocating the establishment of an Independent Judicial Commission - M. Ehteshamul Bari, International Review of Law: Vol. 2014 1, 1. viewed at http://www.qscience.com/doi/full/10.5339/irl.2014.1)
Perhaps the most damning manifestation of executive interference in the judiciary is the use of ICT judges by prominent Awami League supporters to direct the prosecution. Leaked Skype conversations and emails between the then Tribunal Chairman Mohamed Nizamul Huq and a lawyer of Bengali origin living in Belgium Dr. Ahmed Ziauddin, published in The Economist (12 December 2012) and the Bangladesh daily Amar Desh (9 December 2012), reveal collusion between the government, Huq and the prosecutors to convict the accused leaders of Jamaat-e-Islami. They reveal direct government interference in the appointment of judges of the Tribunal and its proceedings, applying political pressure to come out with fast verdicts.
According to the leaked communications Huq was promised promotion to the appellate division of the Supreme Court if he gave one verdict by December 2012. After the scandal became public, Huq resigned from the Tribunal, which was reconstituted with a new Chairman appointed to take his place. The reconstituted Tribunal showed its lack of independence and partiality by rejecting the application by the defendant Maulana Delwar Hossain Sayedee for a retrial based on the improper and illegal conduct of the former Chairman. The Tribunal proceeded with the trial although none of the three judges hearing the case had heard the full evidence given by witnesses. They found Maulana Sayedee guilty of the charges and sentenced him to death.
On the improper and biased conduct of the Tribunal judges, Human Rights Watch commented: "It would be highly irresponsible and unprofessional for a verdict to be delivered when none of the judges heard all the evidence and were unable to assess the credibility of key witnesses, particularly in a trial involving 40-year old evidence and complex legal issues. Before the chair of the court resigned for improprieties only one judge had heard the totality of the evidence, and now even that one judge is gone. A new trial is the only way for the court to preserve its integrity."
The original charge sheet against another defendant, Mr Motiur Rahman Nizami did not include the charge of Intellectual Killing and did not submit whatsoever any oral or documentary evidence. The leaked communications revealed that Dr. Ahmed Ziauddin was dictating the orders to be passed in the cases pending before the Tribunal. It also came to light that this Awami League supporter was involved in drafting orders and prosecution documents. It was revealed that Mr. Justice Md. Nizamul Huq (erstwhile Chairman of the ICT-1) would rely on him extensively even to the extent of overriding his own opinions. Dr. Ziauddin would also advise the Judges and Prosecution on the same issues.
The 'Skypegate' leaks also show that Justice Huq had regular meetings with the prosecutors during which decisions were taken regarding filing of petitions by the prosecutors and passing of orders thereon by the Tribunal. Not only that, Ziauddin played an important role in advising Justice Huq and the prosecutors, often acting as a conduit between the two.
The conversations also show extensive executive interference, in particular of the State Minister for Law, Justice and Parliamentary Affairs, with the process of the Tribunal. The State Minister regularly visited Justice Huq and directed him to pass judgments quickly. Furthermore, there is evidence to show that Justice Huq had been offered a promotion to the Appellate Division by the Chief Justice and a senior Judge of the Appellate Division upon disposal of as many as three cases by December 2012. In view of this disclosure it is not unreasonable to infer that similar rewards/incentives were not given to other judges of the Tribunal.
The appointment of judges to the ICT too is revealed to be made on a political basis. Judge Shahinur Islam and Justice Jahangir (Tribunal-1) are described as Awami Leaguers. Justice Hoque is described as a "yes-man" of Justice Huq. Justice Kabir is described as taking into account political considerations in making statements/taking decisions.
Most of the judges of the Tribunals appear from the Skype conversations to be appointed on the basis of their political leanings. There is evidence of interference by ministers. Ziauddin also seems to have influence over the judges in both Tribunals. Although the evidence of interference by ministers is available in respect of one judge (due to the benefit of the Skype conversations), it is only reasonable to believe that the same ministers who influenced Justice Huq would also seek to influence other judges of the Tribunal. All the judges have been tainted.
For decades, hundreds of thousands of Rohingya, an ethnic and religious minority from Myanmar (Burma), have sought refuge in Bangladesh after fleeing persecution at home. Today, despite the well-known situation in their country of origin, just around 30,000 of them are recognised as prima facie refugees by the Government of Bangladesh, and live in official camps under the supervision of the Office of the United Nations High Commissioner for Refugees (UNHCR).
The number of Rohingya refugees in Bangladesh has increased since violence in neighbouring Arakan state in Myanmar erupted between Muslim Rohingya and ethnic Rakhine Buddhists in June 2012, which caused some of the 140,000 internally displaced to attempt to flee across the border. In response Bangladesh closed its border to asylum seekers fleeing the sectarian violence in violation of its international obligations. Bangladesh is a party to treaties, including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (CAT), the International Covenant on Civil and Political Rights (ICCPR), and the Convention on the Rights of the Child (CRC). These treaties establish the obligation to respect the principle of nonrefoulement, which holds that refugees should not be forcibly returned to a place where their lives or freedom would be threatened and that no person should be returned to a place where he or she would be subjected to torture.
The majority of Rohingyas in Bangladesh struggle to survive — unrecognised and largely unassisted. Despite fleeing the very same circumstances as their counterparts in the official refugee camps, these people are forced to live as illegal migrants, vulnerable to ill health, exploitation, and abuse. The agreement between the Bangladesh government and UNHCR restricts the latter's activities to the registered refugees. And UNHCR, mandated to protect refugees worldwide, makes little visible protest at the injustice of this situation.
The majority of Rohingya in Bangladesh reside in Cox's Bazar, an overcrowded and resource-poor area bordering Myanmar. While thousands of self-settled Rohingya have lived in the local community for years, they are largely perceived as a burden on already scant resources and a threat to the local job market through the provision of cheap labour. Their unpopularity, fuelled by the local media, makes them an easy punching bag for unscrupulous local politicians wishing to score political points. Most of the refugees lack adequate shelter, sanitation, or even the most basic of essential resources. They survive day to day, living in squalid conditions, vulnerable to ill health and exploitation, surviving in makeshift shelters built out of bits of plastic and wood or whatever they can find.
"Sexual violence, early and forced marriages and domestic violence are endemic in both the host and refugee communities," according to the report, "but the stressful living conditions and the lack of access to the police or justice system for refugee women increase the risk of abuses. Due to frequent arrests and the migration of male family members in search of work, there is a high number of widows and women-headed households among Rohingya communities. Without a breadwinner, women are forced to engage in begging and sex work and children are sometimes trafficked for domestic work in order to survive," reported Refugees International in 2011.
With no legal rights and refugee status, "a climate of fear and impunity pervades... reinforced by the lack of accountability and oversight" according to the report Bangladesh, The Silent Crisis. (http://www.trust.org/item/20110422011800-7z89w/)
Under international law, if you are forced to leave your country because of political or religious persecution, you have a right to refugee status. However Bangladesh has made it clear that it does not see the Rohingya as its problem, forcing many to attempt to flee again by making dangerous boat journeys to Thailand, Malaysia and Indonesia. The current government has recently proposed to relocate thousands of Rohingya refugees living in camps in the southeastern district of Cox's Bazar which borders Myanmar to the remote Bangladeshi island of Thengar Char. The island disappears completely under several feet of water at high tide, and has no roads or flood defences. (http://news.yahoo.com/bangladeshs-rohingya-relocation-plan-raises-concerns-072908849.html)
Although the United Nations High Commissioner for Refugees (UNHCR) has expressed his willingness to help the Bangladesh government cover the costs of additional services and registering refugees, Bangladesh refuses to act. The UNHCR and other international NGOs have offered numerous proposals for ways to improve the situation, but the government continues to drag its feet.
CRACKDOWN AGAINST POLITICAL OPPOSITION AND MEDIA
Since early 2014 the Awami League government has rounded up and arrested hundreds of opposition activists, including from the Bangladesh Nationalist Party (BNP) and the Jamaat-e-Islami Party. The government crackdown came in response to opposition protests on the anniversary of controversial national polls in January 2014, which the BNP boycotted and from which Jamaat was excluded.
Khaleda Zia, the leader of the BNP, was effectively detained in her office premises in Dhaka on January 3, 2015. Although the government claimed she was not under arrest, a heavy security presence remained in place, the gates were locked, and she was denied exit. Information Minister Hasanul Huq announced that the government was preparing murder charges against Zia for an arson attack. No such charges ever came to pass.
On January 6, 2015 Mirza Fakhrul Islam Alamghir, the acting secretary general of the BNP, was arrested as he left the press club in Dhaka, for allegedly organising a protest the previous day that led to the deaths of four people and dozens of injuries. Two activists were shot dead in clashes between activists from the ruling party and security forces. Another two died the same day at the hands of security forces. Several other BNP leaders have been arrested as well.
The authorities have also targeted media perceived to be sympathetic to the opposition. Abdus Salam, chairman of Ekushey TV (ETV), was arrested and detained on January 7, 2015 allegedly for charges of broadcasting pornography. His arrest came one day after ETV's broadcast of an anti-government speech by Tarique Rahman, a senior member of the BNP and the son of Zia. Shortly after the speech was broadcast, the government announced a ban on any further public dissemination, by any medium, of any political speeches by Rahman, without citing any reason.
The government alleged that opposition leaders and supporters have planned violence and arson attacks without producing any facts to support this assertion.
The 2014 election period was marred by severe violence, leaving hundreds dead and injured. In response to often violent opposition protests, the government unleashed a crackdown during which law enforcement officials carried out extra-judicial executions, enforced disappearances, and arbitrary arrests.
The government of Bangladesh should take immediate steps to:
1. Disband the ICT.
2. Instruct the International Criminal Court at the Hague to convene an independent tribunal to investigate and prosecute war crimes committed during the 1971 war.
3. Until such a tribunal is convened, all current suspects must have charges against them dropped and be released from prison or bail conditions.
4. Revoke all convictions and sentences against ICT suspects.
5. Institute an independent inquiry into the conduct of all the judges of the ICT tribunals.
1. Appoint an independent judicial body to establish a new judicial commission that will be responsible for the appointment of judges to the upper courts in order to restore the independence of the judiciary.
1. Pledge to leave its borders open to all refugees fleeing persecution, particularly the Rohingya.
2. Respect in practice its international obligations to nonrefoulement.
3. Legalise the status of all refugees so they can have access to employment, housing, healthcare and education.
4. Halt all attempts to forcibly resettle Rohingya refugees from their current places of residence.
5. Investigate allegations of widepsread practice of rape of Rohingya refugees, especially by public officials.
6. Protect those who are vulnerable from sexual violence and exploitation.
POLITICAL OPPOSITION AND MEDIA
1. Free all political prisoners
2. Desist from harassing opposition activists, politicians and media.
3. Open an independent investigation into the the enforced disappearances and suspected extra-judicial executions that occurred in the run-up and during the 2014 general election.
4. Release all journalists still being held for expressing anti-Awami League views.
1. Put in place a caretaker government comprising members of all Bangladesh's main parties. One of this government's main functions would be to institute an independent Electoral Commission to organise a new general election under the guidance and watch of independent international observers.