Laws of passion: the Shahbag protests

The second verdict handed down by Bangladesh's war crimes tribunal is life imprisonment. Now a death sentence is being demanded in mass protests supported by the ruling regime, with calls for violence that extend into Bangladeshi society. Yet the guilty verdict itself may be a far cry from sound.

Thousands have gathered across Bangladesh in protest across several cities. Images of the freedom movements of the Middle East are evoked, but this is no freedom movement. The protesters have gathered to speak out against the second verdict handed down by the Bangladesh International War Crimes Tribunal (ICT). Abdul Quader Molla, a senior leader of the opposition party, Jamaat-i-Islami, was found guilty by the ICT of crimes against humanity and sentenced to life imprisonment. To the protestors, who began their movement in the Shahbag crossing of the capital Dhaka, this is not enough. They want Molla and the other accused hanged.

Molla denies having committed the crimes and repeated his denial upon receiving the sentence. His party has strongly condemned the verdict as politically motivated while his lawyers have pledged to appeal to the high court. Among the concerns raised by the defence are that the prosecution only presented 12 witnesses, many of whom were ‘hearsay’ witnesses and beneficiaries of the ruling Awami League led regime that has championed this tribunal. More tellingly, the defence themselves were permitted to only present six witnesses, half those permitted the prosecution, in this high profile and much belated war crimes case. Ultimately, the lawyers observed that the trial dealt with deeply emotional issues and the judges had permitted their emotions to cloud their judgement.

The concerns are glaring. Nonetheless, the government’s junior Law Minister, Qamrul Islam, has expressed dissatisfaction at the ‘leniency’ of the verdict. Islam has, incredibly, confirmed the government is now preparing to make changes to the ICT Act to allow the prosecution to appeal the verdict of life imprisonment and seek the higher sentence of execution. Under current laws the prosecution can only appeal acquittals. The Law Commission of Bangladesh has already presented draft amendments to the Bangladesh Law Ministry.

There has been much international criticism for the ICT, and not without reason. The most recent, and most high profile, includes a statement issued by the United Nations in which Christof Heyns, the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions, “expressed alarm” at the fair trial and due process concerns raised, stating “Capital punishment may be imposed only following proceedings that give all possible safeguards to ensure a fair trial and due process, at least equal to those stipulated in the International Covenant on Civil and Political Rights, to which Bangladesh is a State party.”

Not long before the UN statement, Human Rights Watch, in its latest of a series of press releases expressing concerns over the ICT and as part of its World Report 2013, condemned the current running of the tribunal. The report commented on “glaring violations of fair trial standards” in the trials of the ICT, observing that “serious flaws in the law and rules of procedure governing these trials have gone unaddressed, despite proposals from the US government and many international experts.”

These are not the only reputable – and clearly impartial – international bodies to have expressed concerns. Apprehensions have been vocalised by members of the House of Lords in Britain, Lord Avebury and Lord Carlile. The US Ambassador-at-Large for War Crimes, Stephen J Rapp has also spoken out, as has the Bar Human Rights Committee of England and Wales and the International Centre for Transitional Justice.  Critique for the current process has also come from the International Bar Association, as well as Suzannah Linton, a respected legal academic. Previous statements of concern issued by Human Rights Watch, particularly regarding an abducted defence witness, the need for retrials following a whistleblower leak that exposed improper coordination between judges, prosecution and government, and on the trials’ flawed legal framework, can be viewed here, here and here.

Perhaps the most interesting international report on the ICT, however, came from The Economist. In an analysis, the British based news magazine revealed it had been given a cache of leaked material that exposed ‘a disturbing pattern’ of collusion between the presiding judge of the tribunal, Nizamul Haque Nasim, an international lawyer based in Brussels, Ziauddin Ahmed, and the prosecution team. Furthermore, it became clear from the leaks that the government was applying serious pressure on the ICT to come up with quick verdicts.

For their part, the opposition party, Jamaat-i-Islami, and its youth wing, Chatra Shibir, have been protesting the partial and political nature of the ICT, under which all their senior most leaders stand accused. They have, however, been specific in asserting that they will stand by any new court that is established on fair grounds and following due process. These protests, while large and countrywide, have not enjoyed the same widespread and rose-tinted coverage by the pro-regime media as Shahbag has. Instead, this opposition has been sharply and consistently condemned as a ‘conspiracy’ to undermine the tribunal, with complete disregard for the opposition party’s expressed acceptance of a tribunal that respects due process and fulfills international standards. Meanwhile, the police, in coalition with the ruling regime’s youth, the Bangladesh Chatra League, have administered a brutal crackdown on opposition rallies, leaving many dead and arresting hundreds. Recent protests resulted in four deaths of Jamaat and Shibir members, including a boy of class 10.

The protests in Shahbag and elsewhere in the country, are an interesting addition to the mix. These protestors, unlike the opposition, have faced no police violence; indeed the police have been helping them along by diverting traffic (meanwhile, police have prevented another opposition party, the Bangladesh Nationalist Party, from holding a prescheduled rally on Saturday). This is perhaps unsurprising, given the protesters of Shahbag are repeating the very demands members of the ruling regime have been making throughout the ICT process. While Shahbag may claim to be apolitical, it is evident their concordance with the nation’s ruling politicians is doing much to assist the cause. Prime Minister Sheikh Hasina herself has openly expressed solidarity with the protest and committed herself to fulfilling the protestors’ demands, stating in parliament “Every word of their oath is justified. We will do whatever necessary to implement their oath. It is our commitment” and even whimsically commenting “My soul is also with them, I wish I could join them at Shahbagh.”

It has also proven almost impossible to reason with the protestors, many of whom aggressively denounce any critique of their movement as “pro-Pakistani”, “pro-war criminal”, “unpatriotic” and accuse critics of being “razakars” (“collaborators” – a derogatory term for those deemed to have assisted the Pakistan army in 1971), “neo-razakars” or “children of war criminals” among any number of other tasteless epithets. That blindly angry individuals of this kind are likely to descend upon this article too is quite expected.

The protest has gathered people of varying ages with a common cause. Photos are appearing of protestors wearing “we want razakars hanged” bandannas across their forehead, while Shahbag slogans are being broadcast across the media: “We have only one demand, hang the Razakars”, “Hanging, we want hanging!”, “Make batons, beat Shibir”, “Throw shoes at the face of Razakars”, “catch Shibir and slaughter them”. Meanwhile, there have been placards proclaiming “I want to murder Quader Molla and spend two months in prison”. Even young children have been photographed with “we want the razakars hanged” painted in blood red across their torso.

The terms of this protest are truly disturbing in their open advocacy of violence and capital punishment, particularly in their inclusion of children in this violent and vindictive approach. While Bangladesh was freed as a nation in 1971, it is clear that it is yet to be freed from the aggressive hate of the dominant liberation narrative. Much as the Bengali media may try to claim it, this rally is no Tahrir Square, where the noble cause of protest was freedom from oppressive dictatorship and the establishment of democracy. This rally is one of hate and revenge. As one astute blogger notes, this is not Shahbag Square, this is Shahbag More with more people than usual. Some protestors have even created the slogan, “we’ve got the razakars, what about their children?” Little is left to be said.

The Shahbag protestors have also been calling for the banning of Jamaat-i-Islami, taking pledges to boycott many of Jamaat’s institutions, including hospitals and banks. That a democratic party – the only one to be internally democratic in structure in a nation of dynastic political parties – should be banned in the name of secular democracy is an incredible claim. As a registered political party that observes due political processes, there is little claim to ban the party if democracy is to be respected. The democratic way to oppose would be to use the ballot – if you don’t like them, don’t vote for them. Yet this fact appears to elude the self-proclaimed secular democrats of this protest, and a more autocratic law of governance seems to paradoxically reign.

Aristotle states in his Politics that “the law is reason unaffected by desire” (in a more popular variant: “the law is reason free from passion”). The Shahbag protest only confirms that Bangladesh is singularly ill-suited to hold a tribunal over the terrible war crimes of 1971. As the glaringly controversial and compromised tribunal continues to conduct problematic trials, the people on the ground of Shahbag are evidently more interested in revenge fed by deep vitriolic passions than true justice conducted by a rational and balanced court of law. For this reason, among the great many others, it is imperative that the Bangladesh ICT be transferred abroad, to be conducted under the jurisdiction of the United Nations, where heated passions of either party in this conflict cannot compromise a court in which lives – both those murdered in 1971 and those behind bars today – are in the balance.