A tribunal exposed: leaked correspondence suggests a "disturbing pattern" that risks a miscarriage of justice

The domestic tribunal created to end the culture of impunity following the 1971 independence war continues to lose credibility, victim of partisan politics and judicial corruption. The latest scandal exposed by The Economist reveals the extent to which the project for justice has been compromised.

Aisha Rahman
28 December 2012

In recent weeks Bangladesh has become mired in chaos with strikes, protests and police brutality dominating the headlines. As we approach another anniversary marking Bangladesh’s bloody independence struggle, the increasing discontent felt by many has spilled over into expressions of anger and even violence. 

A major source of frustration for opposition parties is the ongoing International Crimes Tribunal (ICT). Human rights groups, including Amnesty and Human Rights Watch, as well as individuals have expressed concerns that the trial cannot be conducted fairly, due to the political affiliations of those involved.  All of those on trial are former or current leaders of opposition political parties. The majority have been denied bail, despite being elderly and posing no flight risk, a fact that has been criticised by the UN Working Group on Arbitrary Detention. There have also been allegations of human rights abuses and denial of medical care.  The recent abduction of a defence witness, as well as intimidation and harassment of the defence team have also been cause for serious concern.  The Bangladeshi government and the judges for the trial have denied any accusation of bias or improper conduct thus far.

This is a domestic tribunal which was supposed to end the culture of impunity following the 1971 independence war. Terrible atrocities were undoubtedly committed during this war, however the Pakistani soldiers largely responsible were pardoned soon after Bangladesh’s independence and many in Bangladesh feel that they were robbed of justice.  Those who sided with Pakistan politically during the independence struggle were labelled  ‘Razakars’ or collaborators. As part of its election manifesto the Awami League pledged to try these people for war crimes, with a probable capital sentence for those found guilty. The tribunal has not been without considerable controversy, but has continued undeterred for the past two years.

However, recently, an astonishing event came to the attention of the world press.  The chairman of the tribunal, Justice Nizamul Huq, passed an order accusing the well-respected British weekly, The Economist, of hacking into his private Skype conversations and emails to a Brussels-based lawyer, Ahmed Ziauddin. The Economist published a blog post soon after, acknowledging that it had received this information, although denying agency in procuring it, and that the tribunal could have a serious case to answer if the evidence was found to be genuine. The Bangladesh-based newspaper Amar Desh then published a number of transcripts of the conversations, and audio recordings began to surface on the internet. Nizamul Huq resigned from his post on 11th December, citing personal reasons. The following day, The Economist finally published its piece on the tribunal, a damning report including a number of direct quotations and details of the conversations, in what it described as suggesting a ‘disturbing pattern’ of correspondence between the judge and Ziauddin.  Human Rights Watch has calling for a retrial of the Sayedee case as following Nizamul’s resignation there is now no judge who has heard the evidence in its entirety. Senior lawyers and expatriates have also called for a retrial.

The recordings reveal that Judge Nizamul Huq was not only discussing details of the tribunal, but was receiving direction from Ahmed Ziauddin and an Oxford-based colleague of his, Rayhan Rashid. It revealed an unprecedented level of remote access to the ICT granted to Ziauddin and Rashid. More troublingly, the leaks proved that Ziauddin was assisting both the judge and the prosecution, raising questions of a conflict of interest. Ziauddin stated that he would provide a structure for the first judgement and instructed Nizamul Huq on passing written orders, restricting the number of defence witnesses. He also discussed details of how long a prosecution witness should testify for. Furthermore, he mentioned that the prosecutor, Zead-al-Malum, has asked him to provide people to assist with checking documents, and mentioned that he had received SMS messages relating to applications received from the defence and from the prosecutor.  Nizamul Huq also stated that he would reject a petition from the defence (for foreign expert witnesses) without having read the documents.

The Economist’s expose went even further to reveal Ziauddin’s level of control over the trial, including how an indictment against former Jamaat-e-Islami chief, Ghulam Azam, issued on May 13th by Huq was identical to a document sent  by Ziauddin a day earlier. In another email, we learn that the judgement for Sayedee was being prepared in October, before the defence had concluded its evidence. 

The almost total lack of media coverage of the incredible revelations in Bangladesh highlights the partisan nature of much of Bangladesh’s press and the level of suppression experienced by those more independently inclined. Only the openly oppositional publications, such as Amar Desh and The Daily Sangram have had the courage to risk the wrath of the authorities and publish. Yet, the fact that these papers were completely sold out with the nation vying for copies - Amar Desh had to print additional copies to meet demand - proves the public interest and necessity in accessing this information. Predictably, the authorities have now banned further publication of the leaks and the Amar Desh Editor, Mahmudur Rahman, a man previously arrested and tortured for publishing material critical of the Awami League authorities, has stated he is awaiting the arrival of the police. There have been reports that his newspaper’s offices have been surrounded by police on Thursday.

In spite of this ongoing suppression of the press and the country’s current ban on Youtube, the blogosphere has been alight with comment and discussion on the issue. Depressingly, the majority of those in favour of the trials seem unable to recognise that the need for justice for the 1971 does not mitigate the gross injustice of a trial in which the evidence has been skewed in favour of the prosecution and the judge has been proven to be incompetent and partisan. Wild conspiracy theories abound, which accuse opposition parties of conducting a well-funded and orchestrated campaign to discredit the tribunal in collaboration with Western media. While the Awami League government seeks to suppress publication and root out the source of the leak, there is blatant denial of wrongdoing and worrying lack of concern for the credibility of the court.

Many of those in the so-called Bangladesh ‘civil society’, or secular elite, have shrugged off the controversy, and some have even defended the judge, saying he has a right to seek expert advice. In fact, a judge in his position must declare any such assistance. Why it took the revelations at The Economist for Huq to state the involvement of Ziauddin is a compelling question that has failed to secure an adequate answer. The conversations reveal that Ziauddin’s role goes far beyond mere advice in any case. The argument that the judge himself was known to have campaigned for the war crimes trial and against those that stand accused so there is no particular new bias also rings false. It merely demonstrates the distorted view of justice held by many advocates of the current tribunal that such a judge was considered to be acceptable in the first place. The view that the trial must continue at any cost denigrates the status of the Bangladeshi justice system.  Those in civil society, who should most passionately support the principles of fair and impartial law, seem to have a blind spot when it comes to this trial.

The Awami League government, in an effort to complete the trials before the end of their political term, believe the tribunal can simply carry on without Nizamul Huq. However, this trial cannot now pretend to be the instrument for justice the Bangladeshi people hoped it would be. A fair trial which gives equal status to the prosecution and defence, with an impartial judge and international observers would be the standard to provide justice.  Anything short of this will be yet another stain on Bangladesh’s short history as a nation.

While the ICT has claimed to seek to end a culture of impunity and achieve justice, a project which may help the nation finally come to terms with and move forward from its traumatic birth, it is only succeeding in digging the country deeper in the painful mire of its bloody past. There are many reasons for which the credibility of such a court must be beyond reproach, not least that a flawed process would only threatens the aggravation of pain and the prevention of true catharsis for the victims. Unless the tribunal is credible, Bangladesh will never manage to overcome its past and grow as a nation.

With the country suffering from multiple levels of instability and unrest in recent days, the torturous extension of war time suffering through the flawed ICT is one further dose of salt in the wound of an ailing nation. The recent tragic fire that engulfed a garments factory gained much international commentary and gave rise to critique against the authority’s failure to regulate the nation’s largest export industry. The death of Bishwajit Das, an innocent 24 year old shopkeeper of the minority Hindu community, who was savagely killed by a mob of men from the Bangladesh Chhatra League (the youth wing of the ruling Awami League party), has shocked most Bangladeshis and led them to question the state of their country’s politics and future.  Meanwhile, the ruling Awami League has instigated a crackdown on the opposition, amid accusations of ingrained corruption and abuse of power. The nation has been rocked by a series of political protests and strikes led by the opposition against a government they feel is abusing its authority and conducting witch-hunts against their leaders. New arrests of opposition leaders, including senior figures of the Bangladesh National Party and Jamaat-e-Islami, have further inflamed tensions.

Amidst the crisis, many are now desperate for stability, justice and reconciliation. It is only to be seen whether the authorities will take this exposure as an opportunity to start afresh with transparency, to regain the trust of the people and deliver the promise of genuine justice upon which their election campaign rode, or whether it will see it as an excuse to further their pursuit of blind political revenge.

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