Trial for massacre: Extradition only if death penalty abolished

With an arrest warrant out for ousted prime minister Sheikh Hasina, Bangladesh’s interim government should amend the International Crimes Tribunal (ICT) Act to ensure a fair and impartial judicial process, Human Rights Watch (HRW) said.
Before moving ahead with trials, the interim government should adopt a moratorium on the death penalty and take steps to abolish capital punishment in line with international human rights law, the New York-based rights organisation said in a letter to the law, justice and parliamentary affairs ministry on Monday.
Unless the Bangladesh government issues a moratorium on the death penalty and makes amendments to ensure a fair trial, the foreign governments sheltering deposed prime minister Sheikh Hasina and her senior cabinet members should not extradite them to face trial.
India and other relevant governments should support Bangladesh’s justice process by adhering to extradition agreements once the government makes amendments to ensure that the accused will be safe and will face a fair trial by international standards, HRW said.
“Without clear commitments to international standards, the interim government risks undermining the justice process,” said Julia Bleckner, senior Asia researcher at HRW.
The tribunal, which was established under Hasina’s government in 2010 to address crimes against humanity committed during the 1971 Liberation War, has previously been fraught with violations of fair trial standards.
This included failure of evidence gathering, lack of independence of judges including collusion with prosecutors, witness tampering, denying proper rights to defence, forcibly disappearing relatives of the accused and the use of the death penalty, it said.
The interim government has issued important amendments to the ICT Act, the law establishing the tribunal, including provisions for transparency by allowing the presence of international observers and for broadcasting trial proceedings.
Amendments also included important requirements for victim and witness protection.
Nevertheless, additional amendments are necessary to ensure that trials are fair and carried out following international standards and the rights enshrined in the Bangladesh Constitution.
The government should repeal Article 47(A) of the constitution to allow the accused protection of their constitutional rights, including the right to enforce their fundamental rights under Article 44 of the constitution, it added.
Furthermore, the interim government should urgently create an adequately resourced witness and victim protection unit within the court administration.
At a minimum, such a unit should be able to protect witnesses, victims, and their family members before, during and after court appearances, particularly for individuals who testify against serving security forces personnel.
Such a unit should also have the expertise to determine when in-country or, in extreme cases, out-of-country relocation is appropriate and to make suitable arrangements.
Witnesses should know what rights they have and the protections that are available to them, both inside and outside the courtroom.
Any prosecution should be rooted in fair trial standards, the HRW said.
These include the presumption of innocence, the right to equal access to justice and the right to trial before an independent, impartial and competent court.
They also include the right to present witnesses in one’s own defence, the right of defendants to see and be able to challenge the evidence and witnesses used against them and the right to humane detention conditions.
Among the amendments issued by the interim government is a proposal to ban a political organisation found to have committed, aided, or abetted crimes against humanity.
While the role of political parties in grave abuses in Bangladesh should be addressed, a broad ban on an entire political party undermines other human rights obligations, including the right to free association, and sets a dangerous precedent that could allow the court to be politically weaponised, the HRW said.
This section should be amended to apply to individuals convicted of grave human rights abuses, instead of the political party with which they may be affiliated, unless the party itself is held responsible in law for such crimes after a fair hearing.
The authority to ban a party should be limited to courts, not ministers or other members of the executive branch.
“Sheikh Hasina and others with command responsibility should be investigated, tried, and, if found responsible, held accountable for the widespread abuses committed during the protests in July and August. Ensuring fair trials will only strengthen the accountability process and is the only way to deliver genuine justice to victims and their families,” Bleckner said.