Bangladesh Prime Minister Sheikh Hasina

© 2010 Reuters

(New York) - The Bangladeshi government's effort to bring to trial those responsible for atrocities during the struggle for independence in 1971 is an important and long overdue step to achieve justice for victims, Human Rights Watch said today. In a letter to Prime Minister Sheikh Hasina, Human Rights Watch said that it strongly supports a successful legal and judicial process that is fair and impartial.

Seven people have been arrested so far under the International Crimes (Tribunals) Act, though specific charges have yet to be filed against them. Five are members of the Jamaat-e-Islaamiya Party, which is broadly considered to have been against the establishment of an independent Bangladesh, and two from the main opposition Bangladesh National Party. All who have applied for bail have been denied except an 82-year-old, wheelchair-bound man, who was released into his son's custody after he surrendered his passport to guarantee that he would not flee the country.

"The Bangladeshi government has an unprecedented opportunity to hold those responsible for the 1971 atrocities to account in credible trials and, in doing so, to show it is firmly committed to the rule of law," said Brad Adams, Asia director at Human Rights Watch. "This is a complicated process with many challenges, including gathering evidence 40 years later and ensuring that the law and rules of procedure meet international standards sothe trials are beyond reproach."

The 1971 war followed the victory of the East-Pakistan-based Awami League in national elections. The Pakistani government, led by the military ruler General Yahya Khan, refused to accept the results. On March 26, it began Operation Searchlight, sending troops into East Pakistan to arrest Awami League leaders and put down protests. The Pakistani army and affiliated vigilante groups embarked on a massive wave of violence, including widespread rape. Estimates of the number of people killed range from 300,000 to 3 million. As many as 10 million people were reportedly displaced and fled to neighboring India. The Indian army intervened and joined resistance forces to defeat the Pakistani army after nine months of violence. The independent state of Bangladesh emerged in December.

In response to this carnage, the new government in 1972 established special tribunals to try collaborators. In 1973 the parliament passed the International Crimes (Tribunals) Act. But trials never happened for political reasons. Bringing those responsible for the 1971 crimes to trial continues to have considerable popular support and was one of the main planks of the successful Awami League election campaign in 2008. In a concession to Pakistan, the law excludes the prosecution of Pakistani military officials and soldiers.

On a recent visit to Bangladesh, Human Rights Watch met with Law Minister Shafique Ahmed and the prosecutor of the International Crimes Tribunal, Zead al-Malun. Both said they were committed to ensuring that the tribunal meets international standards. The Law Minister welcomed suggestions from Human Rights Watch and others to improve the process. The prosecutor explained that his office has begun to collect documentary evidence and to interview potential witnesses.

"The atrocities and number of victims in Bangladesh have largely been overlooked by the rest of the world for four decades," Adams said. "It is good news that officials are open to suggestions for improvement and that investigations have started in earnest. If the government and tribunal iron out some of the problems with meeting international standards, this effort will deserve the full support of the international community."

Human Rights Watch pointed out that the government has already made some important amendments to the 1973 law. These include changing the composition of the tribunal to civilian judges instead of military judges and mandating the independence for the tribunal's judicial functions. The adoption of Rules of Procedure in 2010 allowed the tribunal to begin its work in earnest.

However, Human Rights Watch said, additional amendments to the Act and Rules are needed to ensure that trials are carried out in accordance with Bangladesh's international human rights obligations, international criminal law, and Bangladesh's constitution. While the 1973 Act was largely based on international standards at the time, international criminal law and practice have since evolved significantly. Trials before a number of international courts, including the International Criminal Tribunals for the former Yugoslavia and Rwanda, the Special Court for Sierra Leone, and the International Criminal Court, to which Bangladesh is a state party, have yielded important jurisprudence and valuable experience in handling complex cases that should be taken into account to ensure that trials before the tribunal conform with international standards.

In its letter, Human Rights Watch said these problems can be addressed by:

  • Amending the definition of crimes to articulate more clearlythe relevant definitions of war crimes, crimes against humanity, and genocide as they existed under domestic or international law at the time of the offense;
  • Amending the act to allow challenges to the constitution of the tribunal and the appointment of its members;
  • Amending the act and rules to ensure that the due process rights of the accused are consistent with Bangladesh's international legal obligations;
  • Repealing Article 47(A) of the Bangladesh Constitution to allow the accused full protection of their constitutional rights, including the right to enforce their fundamental rights under Article 44, which protects fundamental rights;
  • Creating an effective and wellthoughtout victim and witness protection plan well ahead of the trials, to address protection and support needs before, during, and after proceedings;
  • Establishing a defense office to ensure that the principle of "equality of arms" between the prosecution and defenseis recognized; and
  • Equipping prosecutors and judges with the relevant technical expertise to handle cases under the tribunal's jurisdiction in accordance with international practice.

Human Rights Watch also urged the Bangladeshi government not to use the death penalty in tribunal cases or others. Human Rights Watch opposes the death penalty in all circumstances as an inherently cruel and unusual form of punishment and a violation of fundamental human rights and therefore recommends this penalty be removed.

"The attempt by the Bangladeshi government to create a domestic tribunal for such grave crimes could set a valuable international precedent," said Adams. "But without changes to the law and rules of procedure, the process may not meet international fair trial standards. This could result in a lack of credibility for the process in Bangladesh and internationally, which would only benefit those responsible for the horrific crimes of this period. Fortunately, the government and tribunal can fix these problems easily if they have the will."