The Economist and the war crimes trial in Bangladesh

I was bamboozled, to say the least, when I started to read the article "Justice in Bangladesh: Another kind of crime. Bangladesh's war-crime tribunal is sullying its judicial and political systems" published in The Economist on 23 March. There is often a fine line of demarcation between respected journalism and tabloid journalism and I am afraid that, in this case, The Economist is on the wrong side of the boundary.

The title implies that Bangladesh's judicial and political systems are squeaky clean but, unfortunately, the recently constituted war crime tribunal is tarnishing them. In a country where two former presidents were assassinated, two main political parties prefer street to the parliament to settle a score or two, political violence overshadows civil political discourse, and the army is always the elephant in the room — all these do not bode well for a decent political system. Its judiciary is handicapped by the lack of appropriate resources, allegation of corruption in regard to crime investigation, backlog in courts, and concerns about the lack of independence are all well documented. However, higher courts have in the past delivered verdicts against various government positions. Based on the above, the premise that the war crime tribunal is somehow "sullying" Bangladesh's judicial and political systems is downright wrong.

The article pays glowing tribute to Nazi Adolf Eichmann's trial in Israel as a "model of due process". According to the report he was kidnapped from Argentina and tried in Israel in 1961. I am not a lawyer, so I am not sure if a sovereign country can kidnap alleged criminals or alleged war criminals from another sovereign country. My understanding was such countries need to have extradition treaties to handover alleged criminals. Is The Economist implying that Bangladesh government should engage in an illegal act? There are three Bangladeshi alleged war criminals residing in the United Kingdom. Should Bangladesh agencies kidnap them from the UK to face trial in Bangladesh?

The report also says that a German lawyer represented Eichmann as he was a German (though he might have acquired Argentinean citizenship). In the International Crimes Tribunal in Bangladesh, all defendants are Bangladeshi, so Bangladeshi lawyers represent them. However, most alleged war criminals fought for Pakistan during our War of Liberation in 1971 and still harbour appreciable affinity towards the Islamic Republic of Pakistan. If they want Pakistani lawyers to represent them, not too many Bangladeshis, including its government, would mind. It will perhaps show their true colours once again.

Eichmann trial was reported to be "subject to evidence and challenge and legal" implying that the war crimes trial in Bangladesh is not subject to evidence, cannot be challenged and illegal.

In Bangladesh, alleged war criminals are being tried under the International Crimes (Tribunals) Act (ICT Act 1973) which authorized "the investigation and prosecution of the persons responsible for genocide, crimes against humanity, war crimes and other crimes under international law committed in 1971". In 2009, the current Bangladesh government voted to try the war criminals according to the ICT Act of 1973 and it made "amendments to bring the law up to date and in keeping with international standards for similar trials". It allows both sides of the trial to present and challenge evidence. It also allows both the government and the defendants to appeal to the highest court of the land (the Appellate Division of the High Court) against a verdict. In fact, one of the convicted war criminals has already appealed against his conviction. One does not have to be a Bar-at-law to recognize the legality of this trial, though the implications in The Economist are otherwise.

The article says, "Public discussion of the proceedings has been restricted". In spite of all the drawbacks of our democracy, media is relatively free. There are numerous traditional media outlets (TV, radio, newspapers) and various online media (Facebook, twitter, YouTube blogs etc.) are also immensely popular. One does not have to be physically in Bangladesh to observe the intense debate that is going on regarding this trial. People are often glued to the TV news, talk-shows in radio and TV are going great guns, and both sides are presenting and debating their conflicting views. Facebook pages and YouTube video clips are overflowing with information and emotions; newspapers are doing a brisk business. One has to be blind and deaf to miss the current public discussions of the proceeding that are going on in Bangladesh.

The Economist has listed several shortcomings of the war crimes trial and declared, "the trials have been an utter failure". The trial has just started; it has to go a long way before its completion and subsequent appeal proceedings. It is early days, so isn't it premature to call it "an utter failure"?

An alleged disappearance of a defence witness from the minority group has been reported. It is an intriguing issue. The alleged war criminals are mostly from Jamaat-e-Islami group, and they are well known religious fanatics, who perpetrated murder, rape, looting and burning of properties in 1971, especially of the minorities. In the aftermath of conviction of one of its top theologians, this party went berserk. Amongst other things, they burned houses and temples of the minorities. Therefore, the report that one of its star witnesses was from the minority community should be taken with a grain of salt.

In this context let's also have a quick look at the modern day war crime tribunals. We all know about the Nuremberg Trial at the conclusion of the World War II. The United Kingdom, the United States and the Soviet Union set up this trial. All judges and prosecutors were British, American, Soviet and French and defence lawyers from Germany. The constitution of the Tribunal did not provide any option to challenge the Tribunal by the defendants. Twenty-four Nazi officials were indicted; twenty-one were found guilty and twelve got the death sentence. Not only Nazis but also many in the West called it a "victor's justice".

Former Serbian president Slobodan Milosevic was indicted in 2001 by the International Criminal Tribunal for war crimes in Kosovo, Bosnia and Croatia. It went on for five years; he defended himself, denied all charges and made the trial a political theatre, finally died in 2006 before any conviction.

Five Khmer Rouge leaders are being tried by the Khmer Rouge Tribunal. This tribunal was established in 2006 and supported by the UN and the international community. All accused Khmer Rouge leaders deny charges of war crime, genocide and crime against humanity. One of the accused Ieng Sary died in March 2013; there have been criticisms of this tribunal due to premature closure of cases; government's alleged unwillingness to prosecute and the trial marred by resignation of judges.

The examples above show that any war crime trials are fraught with dangers of being labelled as biased can drag on for years, Western or international involvement does not ensure perception of justice being served and can often appear to be chaotic. Another crucial point is that had Jamaat leaders were sent to The International Criminal Court in The Hague, or if Western countries had helped Bangladesh to set the trial – Jamaat and its Middle Eastern minders would have considered it as a part of global crusade against Islam by the Judeo-Christian axis of evil.

What The Economist has described as "Jamaat thugs" are in reality, well trained, ruthless, armed cadres of Jamaat indoctrinated with extreme ideology. They have carried out coordinated attacks on police stations, utilities and public infrastructures, burned houses and temples of minorities. Jamaat's political aspirations and practices have distinct fascist overtones; therefore, they pose a unique threat to Bangladesh's fledgling democracy.

The Economist has also bemoaned, "cheering of the tribunal's flawed proceeding". Victims and their families are not vindictive, but they seek justice; they want closure of a painful chapter of their lives. In this regard, I can quote the following observations about the Nuremberg Trials: "Investigation and trials of powerful leaders (whether political or military) help strengthen the rule of law and send a strong signal that such crimes will not be tolerated in a rights-respecting society. Trials remain a key demand of victims. When conducted in ways that reflect victim's needs and expectations, they can play a vital role in their dignity and delivering justice".

And finally, calling the war crimes trial "Another kind of crime" belies The Economist's position as a respectable, conservative (?) magazine. It could have made positive suggestions to improve the trial process; instead, unfortunately it took the easy shortcut like a screaming tabloid and engaged in thinly veiled contempt of the war crimes trial.

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Rabiul H. Zaki is a BUET and AIT graduate currently working in Australia.