V. Causes of and Solutions for Impunity in Bangladesh

Under international human rights law, Bangladesh is obliged to thoroughly and promptly investigate serious violations of human rights, prosecute those implicated by the evidence, and, if their guilt is established following a fair trial, impose proportionate penalties.[190] Implied in this is that all victims shall have the opportunity to assert their rights and receive a fair and effective remedy, that those responsible stand trial, and that the victims themselves obtain reparations. As the cases described above have indicated, thorough investigations are in reality unusual, prosecutions very rare, and reasonable punishments almost unheard of, even for the most serious of human rights violations.

Impunity in Bangladesh is an institutionalised phenomenon. The Constitution, Criminal Procedure Code, Army Act, Air Force Act, Navy Ordinance, Armed Police Battalion Ordinance, and other laws contain provisions that protect agents of the state from being subjected to prosecution and punishment. By granting state agents vast authority and only providing for limited checks on their powers, the laws in force have also come to facilitate human rights abuses. Some of these laws are part of Bangladesh's colonial heritage, while others are more recent creations.

The Praxis of Immediate Denial

Judging from the cases presented above and numerous other cases reported in the press and by NGOs, the authorities are often quick in presenting their own version of events and in resolutely denying that any violations have taken place. This serves to prevent any serious investigations and discourages victims and their family members from trying to seek justice.

RAB and the police regularly issue press statements when a person has been killed during their operations. As a matter of routine, these statements are published in the press without the media making any efforts to verify the presented facts.

A review of the statements issued by RAB between 2004 and 2006 shows that the agency presented the events that surrounded most of the deaths in almost identical terms. Its statements typically said that a dangerous criminal was arrested, interrogated, and taken to recover hidden arms in the middle of the night. When RAB arrived near the place where the arms were allegedly hidden, the suspect's accomplices opened fire on RAB and the suspect managed to escape. He was then killed in the "crossfire" that followed between RAB and his accomplices.[191]

Lately, the version of events described in RAB's press statements has become more varied. In January 2008, the government instructed the security forces to put an end to deaths in custody.[192] Since then the press releases have rarely said that the victim died after arrest.[193]

Statements from relatives and witnesses indicate, however, that RAB is continuing to torture and kills its victims after they have been taken into custody.

On the evening of July 26, 2008, the mother of Dr. Mizanur Rahman Tutul, the head of the outlawed Purbo Banglar Communist Party (Red Flag faction), held a press conference at Jhenidah Press Club, stating that her son had been arrested by RAB in Dhaka and urging the government not to kill him by "crossfire." According to the police, Tutul was killed in crossfire on July 27, the day after his mother talked to the press.[194]

Regardless of the exact content of RAB's and the police's statements, however, the speedy issuing of statements is a clear signal to anyone considering filing an official complaint: these agencies are protecting their own staff; they will not undertake or cooperate with any attempts at establishing the truth; and they have the ability to influence the way media report on a case.

Intimidation and Inducements

Human rights violations frequently go unreported. Victims, family members, and potential witnesses are discouraged by the very slim prospect that a formal complaint will eventually lead to those responsible being punished. Often they are also warned that any efforts they make to find justice will come at great personal risk.

When Tasneem Khalil was released after 22 hours in the custody of DGFI, he was told to not even tell his wife about what had happened to him. He was also reminded that "next time you will be picked up and no one will even find your bloody dead body."[195]

Abdul Hakim, the father of Abul Kalam Azad Sumon, was beaten by the police to dissuade him from further pursuing justice for the murder of his son. Similarly, others who have ignored these types of warnings have sometimes paid a high price.

As there is no witness protection program in Bangladesh, those who are prepared to testify against human rights abusers have no alternative but to try to protect themselves as best they can. In the end they have few options but to try to change their daily routines and to perhaps leave their homes and stay with friends and relatives. However, most people are not in a position to uproot their lives and leave their houses, families, and work responsibilities and are, therefore, an easy target.

Another reason why criminal complaints are not filed is widespread police corruption. According to a 2008 study by Transparency International Bangladesh, 96.6 percent of all households surveyed experienced corruption and harassment in their interactions with law enforcement agencies. The average sum paid to have a first information report filed amounted to nearly 4,000 taka (about US$60).[196]

Sometimes inducements are offered to ensure that no criminal action is initiated. According to Odhikar, the family of Abul Hossain Dhali was offered 15,000 taka (about $220) by the police if they refrained from filing a complaint in relation to Dhali's death in the custody of Botiyaghata Police on March 7, 2008.[197]

Unconditional compensation is rarely or never provided. Even though Bangladesh is a state party to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, it has limited its obligations under article 14.1, which says that a state party shall ensure that its legal system provide for redress and compensation for victims of torture. Bangladesh's declaration that it will apply article 14.1 "in consonance with the existing laws and legislation in the country" has been opposed by several other nations, which have stated that it raises doubts as to the commitment of Bangladesh to the object and purpose of the Convention.[198]

Complaints and Inquiries

As is evident from the cases presented in Chapter IV, when victims or relatives do attempt to file complaints, the police often refuse to accept them. Even though threats, bribes, and refusals to receive complaints are effective means of ensuring that human rights violations are not investigated, the absence of a formal complaint does not remove the authorities' legal obligations to investigate.

As in the cases of Abul Kalam Azad Sumon, Iman Ali, Debu Prasaddas, and Khabirul Islam Dulal, when the police refused to accept a complaint, there are occasionally attempts to turn directly to the judiciary, which has the power to order or conduct its own investigations into deaths in custody.[199] On other occasions, especially when facing strong public pressure, the government establishes special commissions of inquiry to determine the circumstances surrounding an alleged human rights violation. However, these commissions rarely help to provide accountability and the general public, as well as those striving to find justice in the particular case, are generally not informed of a commission's terms of reference, findings, and conclusions. In many cases there are reasons to believe that orders regarding the establishment of executive inquiry commissions and for judicial inquiries are ignored, as victims and witnesses are never called to testify. In 1998, in a writ petition to the High Court Division of the Supreme Court, several human rights organizations pointed out that the only purpose of commissions of inquiry seemed to be to distract public outrage.[200] Little seems to have changed since then.

Prosecutions and Sanctions

The fact that no one has been prosecuted and sentenced to imprisonment for any of the cases presented in this report is a sad reflection of Bangladesh's larger impunity problem. Of the more than 1,100 "crossfire" or "encounter" killings that RAB and the police have committed over the past four-and-a-half years, not a single person is known to have been held criminally responsible. Since Bangladesh's independence, there are, as far as Human Rights Watch has been able to determine, only two reported cases in which a member of the security forces has been convicted for a death in government custody. Our written request in July 2008 to the interim government for further information did not get a response.[201]

With regard to torture, the picture is not significantly different. The first conviction ever of a police officer because of torture appears to have been handed down as late as 1998.[202] Apart from a few instances of torture leading to custodial death and a small number of custodial rape cases, very few criminal convictions are known to have been imposed since then.

While the cases described in this report have not resulted in criminal convictions, it appears that in several cases those responsible have been subjected to disciplinary actions. That is because, apart from the publicity they have received, the victims' families were exceptionally courageous and committed to pursuing justice. Generally, it also appears that those who receive support from individuals with influence have better chances of ensuring that the perpetrators receive at least some form of reprimand.

The first time RAB officers are known to have been disciplined for a human rights violation concerned the 2005 torture of a businessman, Sheik Abubakkar Sultan, known as Bitan, whose family had close relations with a top RAB official. While RAB denied any wrongdoing in any of the other cases Human Rights Watch described in the "Judge, Jury, and Executioner" report, RAB referred to the torture of Bitan as an "unfortunate incident" and stated that "actions were taken against those found responsible."[203]

About a year after the torture of Bitan, RAB claimed that many others had been "punished" for involvement in "crossfire" deaths. In May 2006, it was reported that RAB punished 133 of its personnel for such deaths.[204] The most serious punishment handed down was "dishonorable discharge." There are no details available about disciplinary actions taken against officers involved in "crossfire" since then, but there are indications that the authorities, in recent years, have not acted against those responsible for such deaths. In August 2008, in a response to the Bangladesh section of Human Rights Watch's World Report, the interim government wrote, "In 2007, total 93 criminals died during gunfight between RAB Forces and the armed criminals. In all those cases, firing of RAB Forces were carried out in exercising the right of self defence and to save government property ..."[205]

It is virtually impossible to determine the details of what action, if any, is taken against members of RAB, as well as the armed forces, responsible for human rights violations, because such sanctions are handled internally by the forces themselves and generally kept confidential. Victims, family members, and the general public are thus denied the right to know the truth.

Even in the few cases where the military or RAB acknowledge that an investigation has been initiated or that sanctions have been handed down, details about the process, the name of the persons found guilty, what punishment the perpetrators have been given, and for what specific acts they were prosecuted, are generally kept secret. There is every indication, however, that the sanctions handed down are wholly inadequate and stand in no relation to the gravity of the crimes committed. It should be noted that the United Nations Human Rights Committee has stated that restricting punishment to separation from service or dismissal from the force in question is not sufficient for such acts as extrajudicial executions, torture, and arbitrary arrests.[206]

Even though violations committed by police officers and BDR personnel are investigated and tried under the civilian criminal justice system, the likelihood of such officers being held to account is not significantly higher than in cases involving members of RAB and the armed forces.

No response has been received to written requests by Human Rights Watch seeking information on the cases presented in this report, as well as on several other cases.[207]Neither was any information provided in response to a similar letter sent in 2006, when Human Rights Watch prepared its report on RAB. However, in September 2007, nine months after the "Judge, Jury, and Executioner" report was released, the government sent a 27-page response from RAB. While the response presented information about the alleged criminal backgrounds of those killed and tortured, it contained, with only one exception, no information about any action taken against RAB personnel. Instead, RAB explained that the deaths were the result of encounters between RAB and criminals, accidents during alleged attempts by the suspect to escape, and mob killings. These explanations are not only contrary to the findings of Human Rights Watch and other human rights groups, but in several instances they also contradict information provided by the police, as well as earlier statements by RAB.

The Legal Framework

The United Nations Human Rights Committee has repeatedly stated that amnesties and other legal measures that prevent investigation, prosecution, and punishment of perpetrators of human rights violations and hinder the victims of such violations from being granted reparations are incompatible with a state's obligations under the International Covenant on Civil and Political Rights.[208] To meet the requirements of the Covenant, the Constitution of Bangladesh and several of the laws that make up the country's largely anachronistic legal framework need to be amended.

Indemnity

Article 46 of Bangladesh's constitution entitles parliament to provide indemnity through law to any state officer for any act done to maintain or restore order, and to lift any sanctions inflicted on this person:

Parliament may by law make provision for indemnifying any person in the service of the Republic or any other person in respect of any act done by him in connection with the national liberation struggle or the maintenance or restoration of order in any area in Bangladesh or validate any sentence passed, punishment inflicted, forfeiture ordered, or other act done in any such area.[209]

On February 23, 2003, parliament passed the Joint Drive Indemnity Act, 2003, which protects members of the security forces from prosecution for involvement in any casualty, damage to life and property, violation of rights, physical or mental damage, between October 16, 2002, and January 9, 2003.[210] The law was adopted following an army-led anti-crime drive called Operation Clean Heart. By the time the troops were withdrawn on January 9, 2003, thousands of people had been detained and more than 40 individuals were reported to have died in custody. The authorities attributed many of these deaths to heart failure, but family members of the deceased claimed that they had been tortured to death.[211]

The indemnity law was heavily criticized both nationally and internationally. Following a visit to Bangladesh, the European Parliament's Delegation for Relations with South Asia and SAARC issued a press statement saying that:

In particular, the recent Indemnity Law limiting retrospectively the possibility to prosecute members of the armed forces but in court martial, and totally indemnifying police forces and political personnel from acts of murder, torture, illegal arrests and other Human Rights violations committed during the "Clean Heart Operation" is a blatant violation of the responsibility of Bangladesh to abide by the Rule of Law.[212]

The 2003 Act was not the first time the indemnity laws have been used to protect the security forces and the interests of civilian and military leaders. In 1974, under Sheikh Mujibur Rahman, members of the paramilitary Jatiyo Rakkhi Bahini were granted immunity from prosecution and other legal proceedings.[213] When Sheikh Mujibur Rahman and several of his family members were assassinated the following year, a presidential ordinance provided indemnity to those involved in this and other assassinations, the related coup d'etat, and the introduction of martial law.[214] In 1979, the constitution was amended to legalize activities and military orders between August 15, 1975 (the day Sheikh Mujibur Rahman was murdered), and April 9, 1979 (the day martial law was lifted).[215] In 1986, under the rule of General Ershad, a similar constitutional amendment was made to legalize military coups led by Ershad himself.[216]

Criminal Procedure Code

The Criminal Procedure Code also contains provisions that shield government officials from being held accountable for their actions. Section 197(1) of the code prohibits criminal actions from being initiated against public officials-including police officers-without government approval, if the offense is committed while the officer is acting or purporting to act in his official capacity.[217]

The Supreme Court has, in several cases, declared that police officers committing murder and other human rights violations are not acting within the scope of their official duties. However, in practice the provision discourages the police and the courts from taking action against public servants. Even when permission is requested, the relevant government department often fails to grant approval. In other cases, the approval is granted only after a substantial delay, thereby violating international law provisions that call for prompt investigation and prosecution of human rights abuses. Delay also allows a suspect to abscond.

Further protection is given in section 132, which provides that prior government permission is required for the prosecution of persons assisting in dispersing an assembly that is unlawful or likely to disturb public peace. It is furthermore said that a person who acts in good faith or in accordance with an order given shall never be considered to have committed a crime while involved in dispersing such a crowd. This section is of particular relevance in light of the fact that mass demonstrations and general strikes have traditionally been a common means of protest in Bangladesh, and that law enforcement officials conducting crowd control duties often use excessive force.[218]

Special Powers Act

Laws giving the authorities the power to deprive a person of his or her liberty in order to prevent potential future criminal acts have been in place on the subcontinent since British colonial rule. As no crime has been committed, these laws are by their very nature in conflict with the right to be presumed innocent until proved guilty, as well as to not be arbitrarily detained.[219]

When Bangladesh's constitution was promulgated in 1972, no provision allowing for preventive detention was included. However, the constitution was amended the following year to allow the practice.[220]

In 1974, Bangladesh's parliament passed the Special Powers Act, 1974, which under sections 2 and 3 empowers the government to detain an individual without charge if satisfied that it is necessary to do so to prevent him or her from committing such "prejudicial acts" as undermining the sovereignty or security of Bangladesh, interfering with the maintenance of law and order, creating or exciting feelings of enmity and hatred between different communities, and affecting the maintenance of services or economic interests of the state.[221] Under the emergency rules in force after January 2007, the types of acts for which a person could be held in preventive detention were substantially increased.[222]

The Special Powers Act allows for indefinite detention. The only substantial safeguards against such detention is a requirement that it shall be reviewed, initially after 120 days, and thereafter every six months, by a government-constituted advisory board made up of two persons qualified to be high court judges, and one senior officer in the service of the Republic.[223] The proceedings before the board are confidential and the detainee has no right to be represented by a lawyer or to examine the evidence on which his detention is based. As stated in the Dhaka Law Reports commentary of the act:

There is no way of judging the accuracy of these materials or the sources from which they have been gathered, whether there are verified statements collected from reliable sources and not hearsays or rumours from any quarter tainted or otherwise... When matters take a course like this it is difficult to say that justice has not been denied.[224]

Those that can afford a lawyer challenge their detention through habeas corpus petitions. For those without access to legal counsel, the only hope is that the government revokes the detention order on its own initiative or that the advisory board finds that there is insufficient cause for the detention.[225]

Successive governments have used the Special Powers Act widely to suppress political opposition and participants in peaceful demonstrations, as well as against individuals engaged in personal disputes with people in positions of authority. Often, detentions have been based on mere allegations. Over the years, several hundred thousand individuals have been detained under the Act.[226] It was also frequently used during the recent state of emergency. Section 14 of the Emergency Power Rules, 2007, explicitly listed the Act among those that the "law enforcement agencies will take active measures to implement...  in relation to grave offences likely to prejudice the public security or economic life of Bangladesh."

From 1974 to March 1995, according to court records, of the 10,372 habeas corpus writs that were moved before the High Court Division of the Supreme Court to challenge detentions, only in less than 9 percent did the court find the detention to be valid-an indication of the extent to which the Act has historically been misused.[227] However, the executive seems to have taken little or no notice of the Supreme Court's repeated criticism of the law and its implementation. It has even ignored release orders, forcing the court to initiate contempt of court proceedings.[228]

As long as the Special Powers Act remains in force, it is likely to be utilised as a tool for arbitrary detention. Those who use it are protected by section 34, which states, "[N]o suit, prosecution or other legal proceeding shall lie against the Government or any person for anything in good faith done or intended to be done under this Act."

Military Laws

Bangladesh's military laws effectively shield members of the armed forces from being prosecuted by the civilian justice system for human rights violations. Instead, they allow them to be tried by their peers in military courts.

The Army Act, 1952, Air Force Act, 1953, and Navy Ordinance, 1961, provide that a serviceman who commits a crime while on active duty shall be tried by a military court martial regardless of the nature of the crime or the circumstances under which it was committed. The only situation under which a serviceman may be prosecuted and tried by a civilian court rather than a court martial is when he or she is not on active duty and is suspected of having committed one of the following crimes against a civilian: murder, culpable homicide not amounting to murder, and rape.[229] Once a person has been convicted by a court martial, he or she cannot be tried by a civilian court.[230]

Bangladesh's military laws stand in stark conflict with the opinions of the Human Rights Committee and other treaty bodies and mechanisms of the United Nations, which have held that military tribunals should only have jurisdiction over offenses that are strictly military in nature and that gross human rights violations by members of the armed force cannot be considered military offenses.[231] The Human Rights Committee has also recognized that the powers of military courts to deal with violations of human rights contribute to impunity.[232]

Armed Police Battalions Ordinance

Members of RAB enjoy wide immunity under the Armed Police Battalions Ordinance (as amended in 2003). Section 13 states that "no suit, prosecution or other legal proceeding shall be against any member of the Force for anything which is done or intended to be done in good faith under this Ordinance."[233]

Although RAB is tasked with civilian law enforcement duties, jurisdiction over RAB offenses, under the ordinance, are referred to internal tribunals, similar to a court martial. Like their military equivalent, these courts operate without any systematic form of transparency and little is, therefore, known about how they function and what decisions they have made in specific cases. The courts are headed by senior RAB or police officers and a conviction can be appealed to either the president of Bangladesh or the inspector general of police.

The offenses listed in the ordinance are almost identical to those set out in the Army Act and most relate to such issues as neglect of duty, disobedience, and providing assistance to an enemy.[234] While the listed offenses include two crimes that may be considered civilian in nature-extortion, and rape of a woman-concerns have been raised about the absence of any guidance on how other crimes under the Penal Code, including murder, should be dealt with.[235] The absence of such guidance has been cited by RAB as a reason why it has not been able to adequately punish those responsible for human rights violations.[236]

Emergency Laws

In the 38 years since its independence, Bangladesh has spent nearly half under a state of emergency or martial rule. The emergency laws have served to legalize abuses and arbitrariness, and thus to provide protection for those who violate human rights.

The emergency declared in 2007 remained in force for 23 months even though it is clear that the country did not during this entire period face, as required under the constitution, a grave emergency "in which the security or economic life of Bangladesh, or any part thereof, is threatened by war or external aggression or internal disturbance."[237]

International law and modern constitutional thinking provide that emergency situations must be governed by standards and norms that are of a protective rather than repressive nature. They should guarantee that an emergency can only be declared for the purpose of restoring normality and guaranteeing that the most fundamental of human rights are protected. Any emergency measures introduced should be proportional to the threats and should not remain in force longer than strictly necessary.

When a state of emergency is proclaimed in Bangladesh, the constitutionally guaranteed freedoms of movement, assembly, association, thought, conscience, speech, and profession, as well as the right to property, are automatically suspended.[238] The enforcement of any other rights can be suspended by an order of the president.[239]

As currently written, the constitution does not ensure compliance with Bangladesh's international human rights obligations. International law does not allow for the suspension of all rights during a state of emergency. Certain rights are non-derogable, including the right to life, prohibition of torture or cruel, inhuman or degrading punishment, and the principle of legality in the field of criminal law.[240] Furthermore the International Covenant on Civil and Political Rights, to which Bangladesh is a state party, provides that any derogation permissible under the covenant must be limited to the extent strictly required by the exigencies of the situation.[241]

The UN Human Rights Committee, the body in charge of overseeing the implementation of the ICCPR, has in the past declared that restricting certain rights, such as freedom of movement or freedom of assembly, may be permissible during a situation of mass demonstrations that include instances of violence.[242] It may be argued that this is exactly what characterized the situation in Bangladesh in January 2007. However, the extensive emergency measures introduced were not proportional to any threat faced. They explicitly enforced restrictions on freedom of assembly, association, and expression, limited the right to privacy, expanded the grounds for preventive detention, impacted on the right to a fair trial, and, perhaps most importantly, undermined accountability for the security forces.

Under the recent emergency, military and paramilitary forces, usually responsible for matters relating to national security, were handed responsibility for civilian law enforcement for which they have no training and experience. These forces were utilised by the government to investigate crimes, carry out arrests, and generally maintain law and order.[243] Under section 16(2) of the Emergency Power Rules, 2007, they were given the same powers as the police to conduct searches and arrests. They were also granted the power to carry out arrests without a warrant if there were reasonable suspicion that a person was linked to a crime. Under section 6 of the Emergency Powers Ordinance, they were provided with immunity from criminal and civil proceedings for actions taken in good faith to implement any emergency regulations.[244] The suspension of the right of judicial recourse for anyone subjected to a violation of fundamental rights, as allowed for under article 141(c) of the constitution, enhanced the impunity even further.