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REPORT ON THE INTERNATIONAL CRIMES TRIBUNAL OF BANGLADESH By Geoffrey Robertson Q.C. Page 1 of 126 Published by International Forum for Democracy and Human Rights | IFDHR IFDHR is a non-profit human rights association. Its registered address is Skenderija 40, 71000 Sarajevo, Bosnia and Herzegovina. http://www.ifdhr.org © IFDHR 2015 All rights reserved. The contents of this publication may be freely used and copied for educational and other non-commercial purposes, provided that any such reproduction is accompanied by an acknowledgment of Geoffrey Robertson QC as the author and the IFDHR as the source. Page 2 of 126 Page 3 of 126 TABLE OF CONTENTS NOTES ON PUBLICATION ..................................................................................................................................... 6 INTRODUCTION: LONG AGO AND FAR AWAY .......................................................................................... 9 CHAPTER 1 - PAKISTAN, EAST AND WEST: A SHORT HISTORY........................................................ 16 CHAPTER 2 – COUNTDOWN TO MASS MURDER ...................................................................................... 26 CHAPTER 3 – THE CIVIL WAR ............................................................................................................................ 34 CHAPTER 4 – RETRIBUTION ............................................................................................................................... 45 CHAPTER 5 - THE INTERNATIONAL CRIMES (TRIBUNALS) ACT 1973 – 40 YEARS ON ........... 54 CHAPTER 6 – IMPARTIALITY: THE MASK SLIPS ........................................................................................ 63 CHAPTER 7 – DEATH SENTENCES: THE FATAL FLAW ......................................................................... 70 CHAPTER 8 – TRIALS IN THE ABSENCE OF THE DEFENDANTS ..................................................... 84 CHAPTER 9 – OBJECTIONS OF LAW ................................................................................................................ 91 a. A Delay of 40 Years Frustrates a Fair Trial ...................................................................................................... 91 b. That the inclusion of “individuals and groups” by a 2009 amendment can only have prospective effect, and ICTA can only apply to the 195 Pakistani war criminals for which it was originally designed. ................................................. 92 c. The Tripartite Agreement gave immunity to the 195 Pakistani POWs and this immunity extends to all who could be prosecuted under ICTA ............................................................................................................................................ 92 d. The Accused should have been prosecuted under the Collaborators Order .............................................................. 93 e. Retrospective Law ................................................................................................................................................. 94 CHAPTER 10 – GUILT BY ASSOCIATION? ..................................................................................................... 99 CHAPTER 11 – PROCEDURAL JUSTICE ........................................................................................................ 110 a. Treatment of Alibi ............................................................................................................................................. 110 b. Burden of Proof .................................................................................................................................................. 112 c. Use of Judicial Notice ......................................................................................................................................... 112 d. Time and Facilities to Prepare Defence ............................................................................................................... 114 e. Hearsay Evidence ............................................................................................................................................... 115 f. Capacity of the Judges .......................................................................................................................................... 116 g. The Defence ........................................................................................................................................................ 117 CONCLUSION ........................................................................................................................................................... 121 Page 4 of 126 Page 5 of 126 NOTES ON PUBLICATION This report has been commissioned and published by the International Forum for Democracy and Human Rights, a group of international lawyers some of whose members have been involved in giving advice to counsel defending those accused in the International Crimes Tribunal in Bangladesh. The detailed work of this war crimes court, which has passed a number of death sentences on opposition political leaders for crimes allegedly committed in the 1971 civil war, has received scant attention in the West although its first decision to execute a defendant was condemned by the UK Government, the U.S. Government, the EU, the UN High Commissioner of Human Rights, Amnesty International and Human Rights Watch. It was therefore decided to invite a distinguished international lawyer, renowned for his independence, to assess the Tribunal’s origins and work to date (January, 2015). Mr Geoffrey Robertson QC has had a celebrated career in practicing and developing the international law of human rights. He was the first President of the UN war crimes court in Sierra Leone, and his textbook Crimes Against Humanity has been an inspiration for the global justice movement. It was repeatedly cited as authoritative by the Supreme Court of Bangladesh in the first case decided by the Tribunal. For that reason alone, Mr Robertson’s opinion must be taken seriously by the government and the legal establishment of Bangladesh. Mr Robertson has no professional or personal connection to those that have commissioned this report, nor to any of the defendants or their counsel at the Tribunal. He has been provided with transcripts of the judgments in all the Tribunal cases, and was requested to provide his own views on Bangladesh’s efforts to bring justice to the victims of international crimes. Mr Robertson appointed a legal assistant, Mr Toby Collis, and Mr Harrison Lanigan-Coyte helped with historical research. Mrs Judy Rollinson, his personal assistant, has worked on the publication of the Report, Page 6 of 126 which sets out the background to the Tribunal and evaluates its published judgments and the Appellate Division of the Supreme Court appeals thus far. Page 7 of 126 Page 8 of 126 INTRODUCTION: LONG AGO AND FAR AWAY The mass killings of many hundreds of thousands of Bengalis in East Pakistan in 1971, accompanied by widespread torture with rapes designed to affect the ethnic balance and the subsequent exodus of millions of refugees, has a special place in the history of the world’s unrequited horrors. What stands out is the full-on barbarity of “Operation Searchlight”, in which a monstrous regiment, with the latest military hardware, emerged behemoth-like from its barracks to kill the poor and burn down their houses and then to exterminate the intelligentsia. That was the beginning of the war. At the end, a few days before Pakistan’s foreseeable surrender, came the most spiteful killings – of the professionals, teachers and community leaders who might have made a contribution to the nascent state of Bangladesh. There was genocide too, aimed at extinguishing or extirpating the large minority (ten million) Hindu population. But these 1971 atrocities are remembered for not being remembered: the main perpetrators (195 Pakistani army officers) were transformed from war criminals to hostages in a game of cold-war diplomacy, and then hailed as home-coming heroes in Pakistan where they have never faced trial. Some of their accomplices were apprehended in the new state of Bangladesh, and in 1973 its International Crimes (Tribunal) Act established a procedure and a court for trying those accused of the crimes against humanity committed in the course of the 1971 attack on East Pakistan1. It had been drafted with the assistance of the International Commission of Jurists, to ensure that the trials were fair by being truly international, with some foreign judges and defence counsel and proper rules of evidence. The Prime Minister, Sheikh Mujibur Rahman, resisted strong international pressure to dismantle it: “How can you expect me to abandon it? Three million people were cold-bloodedly murdered. Two hundred thousand girls have been raped by the Pakistan army. Ten 1 M.Silva,‘ Bangladesh War Crimes Tribunal’ (2013)3(1) International Journal of Rights and Security, p75 Page 9 of 126 million people had to migrate to India and another 15 million moved from place to place out of fear. The world should know what has happened”. 2 Forty years later, the world still did not know what had happened. The International Crimes (Tribunal) Act went into the cold-storage of the Cold War. Sheikh Mujib was assassinated in 1975 and Bangladesh fell to a succession of military governments interspersed by periods of democracy. There seemed little government interest in reviving the issue, although in 1994 a “Peoples Court” took
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