In Book XII of Homer's Odyssey, the Goddess Circe prevents Ulysses from the dangers he would face in his future trip: "when your crew have taken you past these Sirens" -she said- "I cannot give you coherent directions as to which of two courses you are to take".
She predicts that Ulysses' vessel would have to cross a strait inhabited by two different mythological creatures, Scylla and Charybdis.
Scylla, a supernatural creature with 12 feet and 6 heads on long, snaky necks, each head having a triple row of shark-like teeth, is situated at one of the shores: "no ship ever yet got past her without losing some men, for she shoots out all her heads at once, and carries off a man in each mouth".
However, on the other side of the strait lies the sucking whirlpool of Charybdis, who sucks her waters down three times per day, destroying everything that she touches.
Circe advises Ulysses to hug Scylla and avoid Charybdis, as he would better lose six men than his whole crew. Ulysses, anguished by the dangerous prediction, implores: "is there no way of escaping Charybdis, and at the same time keeping Scylla off when she is trying to harm my men?"
The Odyssey of Bangladesh
Two millennia later, international criminal law recovers this mythological question: can one escape the 'Scylla' of impunity while avoiding the 'Charybdis' of show trials? On several occasions, like those sailors in the mythological fable, governments and international jurists who have relentlessly attempted to avoid one of the monsters frequently came in reach of the other.
This is the case of Bangladesh. In 1971 the Bangladesh Liberation War claimed the lives of hundreds of thousands civilians, if not millions. Allegations abound of hundreds of thousands of civilians raped, tortured and systematically killed in less than ten months of hostilities and there is ample evidence of international crimes being committed during this brief yet brutal conflict. However, for more than forty years these crimes were treated with impunity and the 1971 conflict has come to be known as "the forgotten genocide".
Despite a lengthy period of impunty, in 2009, the Bangladeshi vessel started to move away from the Scylla of impunity when the government, led by the Sheikh Hasina Wajed, set up the International Crimes Tribunal, national judicial mechanism mandated to try international crimes arising out of the 1971 War of Liberation. This decision, applauded by the international community, confirmed the increasingly important role of international criminal law in domestic politics and responded to the long-standing demands of accountability. The international community naturally welcomed a process that would put on try those persons identified as having committed war crimes on all sides to the conflict.
The United Nations and a host of international NGOs pledged their support and applauded the brave efforts of the incumbent Awami League Government. Nevertheless, this applause was short lived and effectively ended when the Government of Bangladesh refused the support offered by the United Nations and NGOs, such as the International Center for Transitional Justice, to guarantee the minimum international legal standards of justice and fairness during the judicial process. In light of such a refusal to engage, the international community took the very difficult decision to withdraw any offers of technical or financial support. The applause quickly turned to condemnation.
This refusal to engage brought fatal consequences: two men, Mohammad Kamaruzzman and Abdul Quadar Mollah, were both sentenced to death and executed in a fundamentally flawed process that undermined the right to a fair trial. The proceedings before the Tribunal were tainted by serious allegations of prosecutorial and judicial misconduct, restrictions on the defence to present evidence and call witnesses, witness tampering, falsifying of evidence and by the complete lack of judicial independence from the executive. Kamaruzzman and Quadar Mollah were deprived of their lives in a highly politicized process that negated their rights to be presumed innocent and judged by an independent and impartial tribunal, two of the most fundamental human rights and the base of every fair judicial system based on the rule of law.
It seems that the Bangladeshi vessel, trying to escape from the Scylla of impunity, has fallen under the waters of the Charybdis of show trials. Each and every credible international legal expert and international organization have one by one condemned the flawed nature of the trials and, as goddess Circe predicted, the Government of Bangladesh has lost its "whole crew": its legitimacy.
The Bangladeshi way to Ithaca
The Government of Bangladesh must start a new long-term process of transitional justice and war crimes recovery aimed at justice, accountability and long term reconciliation and properly supported by the international community.
A process guided by truth, justice and accountability instead of revenge, with an international oversight that allows the participation of recognised international jurists will put Bangladesh on the road to recovery. A process where the victims can share their experiences, while giving all accused the opportunity to be heard and presumed innocent unless and until the evidence demonstrates otherwise. A process that respects human rights and international standards of due process, instead of applying victors' justice. A process with a renewed legitimacy that can serve as a role model for transitional processes around the world.
Despite the disastrous experience of the International Crimes Tribunal in Bangladesh, there is still hope for the Bangladeshi vessel to reach its "Ithaca", Justice. With political willingness and international support, a real process of accountability could still be achieved.
This article was jointly written by Pilar Lovelle Moraleda and Toby Cadman