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Numerous clemency measures halted the plans for trials

Edit Date:9/27/2010 12:00:00 AM

 The International Center for Transitional Justice works to redress and prevent the most severe violations of human rights by confronting legacies of mass abuse. ICTJ seeks holistic solutions to promote accountability

A team of ICTJ researcher recently visited Bangladesh and have published their Finding in a Briefing , an Extracts of that is as follows: 


Amnesties and Clemencies
Numerous clemency measures halted the plans for trials. In February 1973, prior to the 
passage of the ICTA, Prime Minister Sheikh Mujib issued the Bangladesh NationalLiberation Struggle (Indemnity) Order, which granted Freedom Fighters immunity from prosecutions for acts committed if they were in connection with the “Liberation Struggle.”

On May 16, 1973, Sheikh Mujib also declared a clemency to those convicted for petty
offenses under the Collaborators Order. On November 30, 1973, the Bangladeshi
government announced a general amnesty for all collaborators (except those accused of
murder, rape, arson, or genocide).6 As a result of these two clemencies, 26,000 people
detained under the Collaborators Order were released; another 11,000 lower-level local
alleged collaborators went on to face trial, and approximately 750 were convicted.7 Shortly
afterward, in early 1974 India, Pakistan, and Bangladesh signed a tripartite agreement that
addressed a number of post-war humanitarian issues: the remaining Pakistani POWs and
“stranded East Pakistanis” were able to return home, and Pakistan withdrew its ICJ claim,
promised to conduct its own trials at home. It also paved the way for Pakistan’s eventual
recognition of Bangladesh’s independence.

After Sheikh Mujib was assassinated in 1975, the new government repealed the
Collaborators Order, disbanded tribunals set up under it, and pardoned and released all
those detained and convicted. The government also passed the Indemnity Act that gave
those involved in the president’s assassination immunity from legal action. The ICTA,
however, was never repealed.

Issues of Concern
The current developments in Bangladesh constitute a rare example of a national search for
accountability for serious past crimes. Nonetheless, certain factors raise concerns that the
process could fall short of international standards or suffer from serious challenges.
Availability of the death penalty: The ICT has the power to impose the death penalty on
any person found guilty. In recent high-profile criminal cases, including those convicted of
Sheikh Mujib’s murder, the death penalty was used. If the death penalty remains in place, the
international community’s ability to support the process will be hampered.

The independence of the process (real and perceived)
The combined effect of the
political rhetoric from government officials, such as statements on who may be the targets of
investigation, and the previous history of immunity granted to Freedom Fighters have
contributed to perceptions that this is a politicized process intended to target certain people
or opposition members. And while the recent judicial appointees to the tribunal have
reputations for integrity and objectivity, judicial independence has been a major problem
throughout Bangladesh’s short history. For example, the ICT’s chief investigator resigned
shortly after his appointment when allegations surfaced that he had been involved with
Jamaat’s student wing during the war. Challenges to ICT officials are likely to continue. The
high court recently dismissed challenges to the appointment of two ICT judges.

Limits on the rights of suspects/accused
 While ICTA includes some basic due process
protections during trial, pre-trial rights are scant, such as safeguards during the questioning
of suspects. Of particular concern is the lack of a clear process that the defense can follow to
challenge the legality of the tribunal’s exercise of jurisdiction. Shortly before ICTA was
passed in 1973, the Constitution of Bangladesh was amended to exempt proceedings for
international crimes from certain basic constitutional rights, including but not limited to the
prohibition of applying criminal law retroactively.

Lack of specialized experience in investigations and prosecutions of mass crimes:
Gathering evidence of crimes committed on a systematic scale more than 30 years ago that is
sufficient to sustain a case against indirect perpetrators requires specialized techniques of
analysis, information management, and legal expertise. Specific attention to questions of
protection and support to witnesses and victims, and proper training in investigation of
gender crimes is also needed, particularly considering the allegations of mass rape.

These developments in Bangladesh represent some of the classic dilemmas in dealing with
long legacies of impunity and the complexity of crafting effective national solutions. While
there is political will from the Bangladeshi government as well as genuine support from
some sections of Bangladeshi civil society to see justice for past crimes, the process remains
controversial in Bangladesh and highly politically charged. The International Crimes Tribunal
is faced with a historic opportunity to bring truth and justice to victims, who have been
fighting for these ideals for the past four decades.

However, real concerns about the fairness and independence of the process cannot be
brushed aside as political rhetoric. At the same time, critiques of the process should not
provide cover for ongoing impunity and denial of the rights of victims to an effective
remedy for crimes against humanity and genocide. Official willingness to revise the ICTA
framework to learn from international experiences, accompanied by broad-based public
debate about a range of accountability options, would go a long way toward addressing these
concerns and meeting popular hopes for justice.
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