The International Crimes Tribunals were established by the Government of Bangladesh in 2009 for the purpose of bringing to justice the perpetrators of the crimes against humanity and genocide, including the well-identified masterminds, who actively collaborated as auxiliary forces with the occupying forces during our War of Liberation in 1971.
As the entire civilized world knows, a bloodbath of genocide was launched against the peaceful and innocent people of Bangladesh - men, women and children - by the Pakistan Army on the midnight of 25th March 1971. Unspeakable atrocities were committed against the unarmed civilian population of Dhaka city. In fact, during the 9 month long Liberation War, the people of Bangladesh experienced cruelties and horrors and worst kind of war crimes and crimes against humanity of contemporary times. An estimated, 3 million people were killed by the Pakistan Army and its cohorts and more than 200,000 women were subjected to rape and sexual violence by the Pakistani Army and Jamat- e- Islami and its affiliated organizations like Islamic Chatra Sangha, Al- Badr and Al- Shams and Razakars which consisted of convicted war criminals like Mr. Mir Quasem Ali and his fellow companions.
These trials have created an opportunity for ending the culture of impunity, ensuring justice to the victims and their loved ones who had been in a state of trauma for four decades since our independence, and paving the way for truth and reconciliation that can only be ensured through justice being upheld and the rule of law prevailed.
Brief Account of the Convict and his role during the War of Liberation
Convict Mr. Mir Quasem was born in Munsidangi Sutalori of Manikganj on December 31, 1952. During the War of Liberation in 1971, he was a student of Chittagong Government College and was elected president of the Chittagong Town unit of Islami Chhatra Sangha, the student wing of Jamat E Islami. He also held the post of General Secretary of East Pakistan Islami Chhatra Sangha till the surrender of Pakistani occupation army to the joint command of Liberation War. During the War of Liberation, the accused was one of the central commanders of Razakars, Al-Badar and Al-Shams Bahini in 1971. He was involved in the commission of offences of war crimes and crimes against humanity in Chittagong. Subsequently discontinuing his education, he went into hiding. He joined the Jamaat-e-Islami in 1980 and has been performing as Sura Member of Jamaat E Islami since 1985.
Summary of the Case
Trial Court: International Crimes Tribunal-2
Case no.: ICT-BD case No. 03 of 2013
Date of Framing Charge: 05.09.2013
Date of Delivery of Judgment: 02 November 2014
Total number of charges: 14
Death penalty: for charge nos. 11 and 12
Imprisonment for twenty (20) years: for charge no. 2
Imprisonment for ten (10) years: for charge no. 14
Imprisonment for seven (07) years: for charge nos. 3, 4, 6, 7, 9 and 10
Acquittal: from charge nos. 1, 5, 8 and 13
Date of Delivery of Judgment by Appellate division of Criminal Appeal no 144 of 2014: 08 March 2016
Acquittal: from charge nos. 4,6,12
Date of Delivery of Judgment by Appellate division of Criminal Review Petition of 58 of 2016: 30 August 2016
Review petition dismissed.
Summary of Charges
Charge Considered for Death Penalty
Charge No. 11: In this charge, accused Mir Quasem Ali, as president of Islami Satra Sangha (ICS), Chittagong Town Unit has been indicted for planning and instigating member of Al- Badr Forces for abducting Jasim- a Freedom Fighter from an unknown place of Chittagong at any time after Eid-Ul-Fitr, 1971 and taking him to Al-Badr torture cell at Dalim Hotel, Underkilla under Kotwali Police Station, Chittagong, where he was kept confined and then at the direction of accused, victim was tortured to death by the member of Al-Badr forces on 28th November, 1971 and eventually, his dead body together with the dead bodies of other 5 unknown persons were thrown in to Karnaphuly river and by that, Mir Quasem Ali has been charged for abetting and facilitating for committing offence of abduction, confinement, torture and murder as Crimes against humanity.
Charge Considered for Imprisonment for Twenty (20) Years
Charge No. 2: Forcible picking up of Lutfar Rahman Faruk and Seraj on 19 November, 1971 at about 2.00 p.m. by the Pakistani invading force and Al-Badar members under leadership of accused Mir Quasem Ali from the house and were taken to the Al-Badar torture cell at Dalim Hotel and during their captivity they were subjected to torture in presence of accused and on his instigation. The accused has been charged for abetting and facilitating the commission of offences of abduction, confinement and torture as crimes against humanity.
Charge Considered for Imprisonment for Ten (10) Years
Charge No. 14: In this charge, accused Mir Quasem Ali as a leader of Islami Satra Sangha (ICS) has been implicated for accompanying some armed young members of Al-Badr Bahini(Force) for raiding and abducting Nasiruddin Chowdhury from his house situated at Nazir Ahamed Chowdhury Road under Kotwali Police station, Chittagong some time at the end of November, 1971 and taking him to Al-Badr torture centre at Dalim Hotel where victim was confined and tortured by the member of Al-Badr Bahini under the direction of accused for many days and eventually, victim along with 100/150 persons were released from the Torture Centre on December 16, 1971 by the local people and by that, Mir Quasem Ali has been charged for abetting and facilitating for committing offence of abduction, confinement and torture as Crimes against humanity.
Charge Considered for Imprisonment for Seven (07) Years
Charge No. 3: It involves the event of keeping Jahangir Alam Chowdhury confined at the AB camp set up at Dalim Hotel, Andarkilla under Kotwali Police Station Chittagong on capture from his rented house at Kodam Tali under Double Mooring police station by a group of AB members and Pakistani army on 22 or 23 November in the morning. The detainee was mercilessly tortured at the instance of accused Mir Quasem Ali, during his confinement. His relatives got him freed from the torture cell at Dalim Hotel on 16 December 1971. Therefore, the accused has been charged for abetting and facilitating commission of offences of abduction, confinement and torture as crimes against humanity.
Charge No. 7: It narrates that on 27th November, 1971, after Magrib prayer on instruction of accused Mir Quasem Ali a group of AB members abducted Md. Sanaulla Chowdhury, Habibur Rahman (now late) and Elias from 111 Uttar Nala Para under Double Mooring Police Station, Chittagong. The captured civilians were brought to the torture cell set up at Dalim Hotel, Andarkilla under Kotwali police station, Chittagong. The camp was under of accused Mir Quasem Ali. The captured victims were kept confined there and on accused’s directives, members of Al-Badar Bahini tortured them severely. The victims saw many people there detained in the same condition during their forceful stay in the Torture Cell. They saw some of them were taken away and they heard that they were killed by Al-Badar Bahini on accused’s instigation. Afterwards, victims Habibur Rahman and Md. Sanaulla Chowdhury were released on 6th December and 9th December, 1971 respectively on condition of providing information about the freedom fighters regularly. Therefore, Mir Quasem Ali has been charged for abetting and facilitating the commission of offences of abduction, confinement and torture as crimes against humanity.
Charge No. 9: In this charge, accused Mir Quasem Ali as president of Islami Catra Sangha (ICS) has been implicated for planning and directing Al-Badr Forces for abducting 1. Nuruzzaman, 2. Syed Md. Osman Hossain, 3. Syed Md. Zamaluddin, 4. Syed Md. Kamaluddin, 5. Syed Md. Sarwaruddin, 6. Syed Md. Golam Kibria and 7. Syed Md. Golam Rahman on besieging Nazirbari Nuruzzaman under Chandgaon Police station in the wee hours of 29th November, 1971 and were taken to Al-Badr torture camp at Dalim Hotel where they were confined and tortured till 15th December,1971 by the member of Al-Badr Bahini under the directive of accused-Mir Quasem Ali and thereafter, those captives were released on 16th December,1971 and by that, Mir Quasem Ali has been charged for abetting and facilitating for committing offence of abduction, confinement and torture as Crimes against humanity.
Charge No. 10: In this charge, accused Mir Quasem Ali as president of Islami Satra Sangha (ICS) has been implicated for planning and directing Al-Badr Forces for abducting 1. Md. Zakaria, 2. Md. Salauddin alias Chuttu Mia, 3. Iskender Alam Chowdhury and 4. Md. Nazimuddin on besieging Nazirbari area in the wee hours of 29th November, 1971 and were first taken them in front of NMC school and then to Al-Badr torture cell at Dalim Hotel under Kotwali Police Station where they were confined and tortured by the member of Al-Badr forces under the direction of accused and eventually, out of those four abductees Victim Md. Nazimuddin was released November 30, 1971, Victim Zakaria was released after 7/8 days of his abduction, Victim Md. Salahuddin alias Chuttu Mia was released on December 11/12, 1971 and Victim Iskender Alam Chowdhury on December 16, 1971 respectively and by that, Mir Quasem Ali has been charged for abetting and facilitating for committing offence of abduction, confinement and torture as Crimes against humanity.
International Standards of Due Process and Fair Trial
While the International Crimes Tribunal Act of 1973 had been a law way ahead of its time, it was further updated through acts by the Parliament to make it factor in a number of key developments in international criminal justice system in the interim. The Tribunals have gone through an evolving process whereby a number of constructive and feasible suggestions have been internalized to bring the trials at par with “international standards”. The fact that these changes have been made to the trials process has also been duly noted by international jurists and observers of the trials.
A common and broad charge is often leveled against the Tribunals for falling short of following due process and fair trials standards. A close scrutiny of these charges would reveal that most of these remain silent on what are the specific issues that need to be addressed to plug the so-called gaps in due process and fair trial in the trials. The verdicts, 26 so far, pronounced by the Tribunals have been generally recognised by the national human rights defenders as upholding due process and fair trial standards.
It is to be noted that the term “international standard” itself does not connote any concrete definition as per international law. However, it is expected by people in general that fair, transparent, plausible procedural due process is to be observed in judicial proceedings.
Nonetheless, the ICT-BD has generally taken the international instruments on human rights as benchmarks to make an assessment as to whether it proceedings comply with the so-called “international standards”. Almost all the judgments pronounced by the tribunals so far provide examples of how the proceedings of the courts have upheld such “international standards”, especially the ones enshrined in the International Covenant on Civil and Political Rights (ICCPR).
In particular, the ICT-2 in its verdict in Case no. 03 of 2012 (The Chief Prosecutor vs. Muhammad Kamaruzzaman) enumerated the corresponding provisions between ICCPR and ICT Act, 1973 with a view to exemplify its points about the Tribunals’ compliance with “international standards”. The Court has given a comparative assessment of the following provisions of ICCPR being upheld by the ICT Act, 1973 and the ICT-BD Rules of Procedures: (i) Fair and impartial trial; (ii) Public trial; (iii) Accused to know of the charges against him and the evidence against him; (iv) Everyone charged with a criminal offence shall have the rights to be presumed innocent until proved guilty according to law; (v) Adequate time of getting preparation of defence; (vi) Services of a defence counsel and interpreter; (vii) Full opportunity to present his defense, including the right to call witnesses and produce evidence before the tribunal; (viii) Right to cross-examine witnesses; (ix) To be tried without undue delay; (x) Not to be compelled to testify against himself or to confess guilt; and (xi) Right to appeal against final verdict.
The judicial system in Bangladesh is well conversant with the State’s obligations under the International Covenant on Civil and Political Rights (ICCPR). Bangladesh internalized the ICCPR provisions in its original Constitution in 1972 long before it actually became a Party to the Covenant in September 2000, during the tenure of Prime Minister Sheikh Hasina’s previous Government.
Independence and Impartiality of Judges and Prosecution
Judiciary in Bangladesh is independent of the Executive. This Constitutional provision has been realized in Bangladesh through a long drawn process of judicial activism and civil society movement. Since their inception, the International Crimes Tribunals have been conducting their work in the full glare of media and public scrutiny, and thus remained under constant pressure to fiercely maintain its independence and integrity. There have been a number of efforts both nationally and internationally to question or undermine the integrity of the judges and prosecutors involved with the trials. These instances were generally found to be misleading and fabricated, and in case of any occasion for doubts or controversy, immediate remedial measures were taken, including measures to address their possible aftermaths.
Section 10(4) of the ICT Act, 1973 provides for holding of the trials in public, while Rule 43(4) of the Rules of Procedure ensures the provision of fair and public trial by allowing counsels [authorized to appear before the Tribunal] to be engaged at the accused’s choice. There have been some occasional instances, especially in case of female victims, where the witnesses were permitted by the courts to be examined in camera [proviso of section 10(4) of the ICT Act, 1973].
Observers and experts from home and abroad are regularly permitted to witness the proceedings as and when they so wish, with intimation to the registry of the ICT. Media persons also remain present inside the court room to witness the proceedings.
Interrogation of Witnesses and Cross-Examination of Witnesses
Interrogation of the accused persons has been conducted in the presence of the accused’s lawyer and with a physician remaining present next to the room of interrogation. During the trials, any Statement given by the accused persons during interrogation was barred from using as a piece of evidence against the accused.
Each and every one of the prosecution witnesses has been cross-examined by the defence counsel at any length.
Right to Appeal
The ICT Act, 1973 provides for the right of appeal to the defendant which is an extended privilege that was not available in case of Nuremberg and Tokyo trials. The original Act, however, did not provide for right to appeal to the Prosecution unless the accused was granted complete acquittal. The subsequent amendment to Section 21 of the Act was enacted by the Parliament in 2014 in order to create the right to equal opportunity in the law for both the defence and the prosecution.
As per ICT Act, 1973, Section 21, the Appellate Division of the Supreme Court is the designated authority for hearing appeal against the verdicts by the Tribunals. Even in case of the international courts on former Yugoslavia, Rwanda and Cambodia, there is no recourse to the apex court of the land for appeal, but to an appeal chamber of the same tribunals.
The Appeal Case of Mr. Mir Quasem Ali
The Appellate Division is the highest court of Bangladesh, composed of five most senior judges of the Supreme Court. The defence appealed before the Appellate Division against the sentences awarded to Mr. Quasem Ali by the ICT-BD.
The hearing of the appeal started on 09 February, 2016 and ended on 8 March, 2016. In its full-bench verdict on the appeal on 06 January 2016, the Appellate Division maintained Mr. Ali’s sentence to death on charge no. 11 and sentences of imprisonment on six other charges (nos. 02, 03, 07, 09, 10 and 14). The accused was acquitted on three charges (nos. 04, 06 and 12) including a murder charge (12) on which he was sentenced to death by the ICT-2. The judgment reads, “The accused appellant was one of the organizers of Al-Badar force at Chittagong, which was raised with the aim and objective of killing the pro-liberation forces and minority community-the force is known as ‘killing squad’. The accused not only organized the force at Chittagong, he had commanded the force and directly participated in the perpetration of most barbarous acts unknown to human civilization. He does not deserve any leniency on the question of sentence on consideration of the nature and gravity of offence. The tribunal awarded the sentence of death in respect of charge no.11 which according to us was ‘proportionate to the gravity of the crime’.”
A review petition submitted by defence before the Appellate Division of the Supreme Court of Bangladesh was dismissed in a judgment served on it on 30 August 2016. The Bench didn’t find any merit of the review petition and the sentence to death and the sentences to imprisonment were maintained. With the review petition dismissed, recourse of all legal safeguards in this case has been exhausted.
Fair Trial and Due Process Standards
Some of the critics claimed ‘flaws’ in the trial and appeals process, whereas the entire judicial process has taken place in a transparent fashion in an open Court, and in pursuance of the relevant provision of the International Covenant on Civil and Political Rights (ICCPR) and the Rome Statute on the International Criminal Court (ICC). The international standards of fair trial and due process are meticulously upheld both in the International Crimes Tribunal Act, 1973 and the Rules of Procedures of the Tribunals, including those concerning fair and impartial tribunal, public trial, accused persons’ right to know of charges and evidence and be presumed innocent until proved guilty, adequate time for preparation by defence, witness deposition to be cross-examined and testified by defence, and right of appeal against the final verdict.
The ICT-BD maintains full public transparency in the conduct of the proceedings whereby the trials are neither summary nor closed, but are ‘open trials’ with full access given to national and international media, relatives of the victims and accused, members of diplomatic missions and research organizations.
What is unique about the ICT-BD trials is that it provides for the right to appeal to the defence before the full bench of the Appellate Division, the highest court of the land, unlike in the Nuremberg and Tokyo trials as well as the international war crimes trials in Cambodia, former Yugoslavia and Rwanda. It has been seen on several occasions that the Supreme Court has overturned or commuted the sentences given by ICT-BD, including death sentences. In the case of Mr. Mujahid, the Supreme Court commuted his death sentence in one count, as mentioned above.
The former US Ambassador-at-Large on Global Criminal Justice Mr. Stephen Rapp during his visit to Dhaka in August 2014 expressed his satisfaction with the overall standard of the trials and particularly appreciated the ‘service and courage’ of the judges. He duly noted that both the prosecution and the defence had equal opportunity to provide evidences through witnesses and documents. In general, he observed, “… The best way in the world is to find the truth is the judicial process where the evidence is presented, where witnesses are cross-examined, where both sides have an opportunity to be heard and that is what is being done here [Bangladesh]. It is the process that the American Government strongly supports.”
Many of the international bodies including Amnesty International oppose the death penalty and thus condemn any process – no matter how legal or transparent – that arrives at such a verdict. In Bangladesh, the provision for the death penalty is an integral part of its criminal justice framework and it is a valid form of punishment under the Penal Code, as well as a whole range of other existing special criminal legislation in Bangladesh. Therefore, it would not be practicable, legally or politically, to simply abolish or impose moratorium on the death penalty with regard to one piece of legislation, i.e. ICTA 1973 and retain it in case of others. However, the independent judiciary awards any such sentence only in case of crimes of the most heinous nature, while execution of the sentence takes place only after the convicted individuals are given opportunity to exhaust recourse to all relevant legal safeguards.
Political Affiliation of the Convicts
The media have sometimes chosen to focus on the political affiliation of Mr. Mir Quasem Ali, referring him as a “Jamaat leader.” While he is a member of Central Executive Council of Bangladesh Jamaat-e-Islami, Ali’s trial was based on evidence, not politics. The ICT-BD trials take solely into consideration the crimes against humanity committed in 1971 by the individuals accused and convicted, and has no preoccupation with their present political status. Mr. Ali’s case is in no way linked to his political identity or affiliation.
The ICT-BD trials have created an opportunity for ending the culture of impunity, ensuring justice to the victims, and paving the way for truth and reconciliation. This was duly recognized by the European Parliament in its Resolution of 16 January 2014 where it posited, “... the International Crimes Tribunal has played an important role in providing redress and closure for victims of and those affected by the Bangladeshi war of independence.”
It is unfortunate that while the international community across the board has embraced the trials as an effort to end the culture of impunity for mass atrocity crimes committed over four decades ago, some selected quarters are still resorting to sweeping, biased and unfounded comments about the trials as fed to them by the agents and sympathisers of those accused and convicted. The Government and the people of Bangladesh are confident that plausible legal arguments can be provided for all the fabricated charges being leveled against the trials, and that the fact that fair trial and due process standards had been upheld throughout the trial process would ultimately prevail.