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The Failure to Uphold Proper Standards of Justice Will Cost Bangladesh's Apparent Commitment to Ending Impunity and Upholding the Rule of Law Dearly

To Bangladesh experience will be remembered as a wasted opportunity to end impunity and hold those who committed the gravest of international crimes accountable. It should serve as a reminder of the damage that can be done where the pursuit of justice is used to settle political scores.

The commitment to ending impunity and holding those persons accountable who committed the gravest of international crimes is truly admirable. This is a process that the international community should support wholeheartedly. However, the Bangladesh experience is a stark reminder of the dangers of retributive justice and political manipulation of a judicial process under the guise of accountability.

The Bangladesh International Crimes Tribunal (ICT) has received criticism and condemnation in equal measure since its inception. However, the level of condemnation has reached epic proportions in the last few days. It is this criticism that has arguably compelled two prosecutors to defend their actions.

A recent article in 'The Hill' entitled 'Bangladesh's Chowdhury was Prosecuted Fairly' by Tureen Afroz and Tapas K. Baul, both ICT Prosecutors accuse critics of the Bangladeshi Government of having "offered the same tired criticism". To characterise the calling for fair trials as 'tired criticism' is offensive and underlines the attitude with which these trials were approached from the outset.

It would appear that the most recent attempt by Government to justify and legitimise the cases before the Courts is in anticipation of the barrage of criticism that has already, and will continue to be made.

The simple fact remains, that it is only the Government that is seeking to suggest that the trial process has been fair. No-one else, including all respected international experts, have adopted such an unsustainable position.

The Bangladesh Government would have us believe that this is a result of a conspiracy, even corruption, most recently with the Prime Minister accusing Amnesty International of taking a bribe to criticise the trials.

The Bangladesh Minister for Law, Justice and Parliamentary Affairs said this week in an interview that "Such a transparent process to try war crimes or crimes against humanity has never been held before." He went on to proclaim that "Never before in the world has there been such transparency in war crimes trial." It truly beggars belief that a Minister would make an error of judgment of such catastrophic proportions. It further demonstrates the ignorance of the Government as to what a judicial process signifies.

Considering these matters, it will be interesting to measure the Government's reaction to the recent statement issued by the former US Ambassador-at-large for Global Criminal Justice, Mr. Stephen J. Rapp; a statement that continues the line of criticism on the basis that the defendants, including that of Salauddin Quader Chowdhury and Ali Ahsan Mohammad Mujahid, simply haven't been afforded a fair trial and that consequently the death sentences imposed on Chowdhury and Mujahid should be immediately commuted.

Prosecutors Afroz and Baul suggest that the criticisms are "political arguments" and "not based on facts". It is therefore appropriate to consider the facts of both cases.

How can it be a political argument to criticise a trial when the court refused to admit defence witnesses confirming an alibi; how can it be political argument to criticise the court for making a finding that statements had been fabricated when not one question had been asked of those persons who had made the statement; and how can it be a political argument to criticise the decision of the Bangladesh Government to ban witnesses from entering Bangladesh.

It is preposterous that the authors do not see the irony in their own baseless arguments, and that they are simply highlighting what has been argued for some time, that the cases before the ICT have been politicised by an increasingly authoritarian government, a government that following the recent Supreme Court verdicts, barred access to social media further restricting free speech in what is purported to be a democracy.

Afroz and Baul go on to suggest that as an example of the fairness of proceedings, defendants were allowed to appeal their convictions, something that is specific to Bangladesh with the ICT being "the world's only international crimes tribunal that allows those convicted to appeal their verdicts". This is just untrue, and a deliberate mischaracterisation of the position internationally. Had this argument been made immediately following the trials in Nuremberg and Tokyo then it may have carried some weight. However, the international ad hoc tribunals of the Former Yugoslavia, Rwanda, East Timor, Sierra Leone, Cambodia and the permanent International Criminal Court in The Hague all provide for the right of appeal, as do all national war crimes courts that have been established in the last two decades. In fact, Bangladesh is alone in not allowing appeals against interlocutory decisions and not permitting any jurisdictional challenges to be brought against the statute or the appointment of judges. In any event, the right to appeal a judgment will only satisfy international human rights instruments if it provides a practical opportunity to test the evidence.

Perhaps the most notable failing in the article, is the penultimate paragraph. As a last ditch attempt at credibility the authors seek to suggest that Ambassador Rapp "expressed his satisfaction with the overall standard of the trials". It is important to note that he has never said this. He has consistently expressed concerns and yet the Government has consistently mischaracterised his position. The second and more important point, is that Ambassador Rapp this week issued a statement expressing grave concerns about the standards adopted in the trials, made clear that the defendants had not received a fair trial, and called for the death sentences to be commuted.

The last grasp at credibility appears to have failed. The international community can see the ICT and the Bangladesh Government for what it is, and no article published by its prosecutors pleading for acceptance will change this fact.

Its approach from the outset has been one of predetermination. It has sought to conceal or suppress any criticism.

To Bangladesh experience will be remembered as a wasted opportunity to end impunity and hold those who committed the gravest of international crimes accountable. It should serve as a reminder of the damage that can be done where the pursuit of justice is used to settle political scores.