Prohibit Retroactive Application of Laws; End Use of Death Penalty
September 18, 2013
“Human Rights Watch has long called for justice for the 1971 atrocities, but justice requires fair trials and due process of law. Changing the law and applying it retroactively after a trial offends basic notions of a fair trial under international law.”
Brad Adams, Asia Director

(New York) – The death sentence against Abdul Qader Mollah, a leader of the Jamaat-e-Islami party convicted of war crimes during the 1971 war of liberation, is based on the retroactive application of amended legislation after the conclusion of his trial and violates international fair trial standards to which Bangladesh is a party, Human Rights Watch said today.

Human Rights Watch has long supported efforts to deliver accountability for the atrocities committed during Bangladesh’s war of independence and to ensuring meaningful justice for victims and survivors through fair and transparent trials which meet the highest standards. Human Rights Watch takes no position on the guilt or innocence of any of the accused at the International Crimes Tribunal (ICT) of Bangladesh.

“Human Rights Watch has long called for justice for the 1971 atrocities, but justice requires fair trials and due process of law,” said Brad Adams, Asia Director. “Changing the law and applying it retroactively after a trial offends basic notions of a fair trial under international law.”

On February 5, 2013, Mollah was sentenced to life in prison by the International Crimes Tribunal (ICT), a domestic court holding trials for the atrocities in Bangladesh’s 1971 war of liberation from West Pakistan.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. On September 17, the Appellate Division of the Supreme Court reversed the life sentence on Mollah and imposed the death penalty for murder and rape as crimes against humanity.Human Rights Watch said that the amendments are a clear violation of the International Covenant on Civil and Political Rights (ICCPR), to which Bangladesh is a state party.

An amendment to the Bangladeshi constitution which strips those accused of war crimes of certain fundamental rights should be repealed to ensure equality and due process of law. Although the Bangladeshi constitution contains a safeguard against retroactive application of laws, the amendment removes these protections from those accused of war crimes. Human Rights Watch has long called for the repeal of this amendment as it violates international law.

“The prohibition against retroactive application of laws is a universal protection for everyone against the abuse of laws,” said Adams. “Without this protection, governments would simply keep amending laws whenever faced with a verdict they didn’t like.”

Human Rights Watch is opposed to the death penalty in all circumstances since it is an irreversible, cruel, and degrading punishment.

The United Nations Human Rights Committee, which interprets the ICCPR, has said that “in cases of trials leading to the imposition of the death penalty scrupulous respect of the guarantees of fair trial is particularly important” and that any death penalty imposed after an unfair trial would be a violation of the right to a fair trial.

“In cases involving the death penalty adherence to fair trial standards is more important than ever,” said Adams. “Instead of giving in to public pressure, the government should now seize this moment to join the international trend in doing away with this barbaric practice.”

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