Accused Should Have Right to Appeal in Case Rife with Fair Trial Problems
(New York) – The death sentence against Abdul Qader Mollah, a leader of the Jamaat-e-Islami party convicted of war crimes during Bangladesh’s 1971 war of independence, should immediately be stayed due to fair trial concerns, Human Rights Watch said today. Mollah should be granted a right to appeal against the conviction and death sentence.
“Human Rights Watch opposes the death penalty in all circumstances as an irreversible, degrading, and cruel punishment,” said Brad Adams, Asia director. “It is particularly reprehensible in cases where laws were retroactively passed in order to enable the death penalty, and where the right to appeal against such a final judgment is not allowed.”
The death sentence was handed down based on retroactively amended legislation, a move which violates international fair trial standards. 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.
In response to large public protests demanding the death sentence for Mollah, the government passed amendments to the ICT law on February 17, allowing the prosecution to appeal the sentence. Until the Mollah case, the prosecution was only allowed to appeal if the accused was acquitted. 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. The International Covenant on Civil and Political Rights (ICCPR), to which Bangladesh is a state party, prohibits the retroactive application of criminal law that has a negative effect on the defense.
Although people sentenced to death in Bangladesh in regular courts are allowed the right to appeal, government authorities, including the Attorney General, stated that Mollah has no such right and have insisted that Mollah exhausted all legal options. The only recourse left open to Mollah, according to government authorities, is to appeal to the President of Bangladesh for clemency. The ICCPR states that everyone convicted of a crime has the right to have their conviction and sentence reviewed by a higher tribunal according to law.
“Human Rights Watch has long supported justice and accountability for the horrific crimes that occurred in 1971, but we have also stated repeatedly that these trials must meet the highest standards in order to properly deliver on those promises for the victims,” Adams said. “Hanging Mollah on the basis of retroactive legislation and then denying him the right to appeal against this sentence is a grave violation of his fundamental rights.”
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.
Although the Bangladeshi constitution contains a safeguard against retroactive application of laws, a subsequent 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 denial of the right to appeal against the death penalty, in a case so fraught with problems, highlights the need for the government to revoke this retrograde amendment to the Constitution,” Adams said. “Justice is needed – and especially for the sake of the victims, these trials must not be tainted.”
Of particular concern in the Mollah case is the fact that the count on which the Appellate Division of the Supreme Court sentenced Mollah to death rests on accusations of which he was acquitted during the trial phase.
“Human Rights Watch takes no position on the guilt or innocence of any of the accused at the International Crimes Tribunal of Bangladesh,” Adams said. “But delivering real justice involves adhering to Bangladeshi and international standards – not hanging a man based on a law hastily enacted retroactively.”