Sheikh Hasina's trial needs neutral observers, not partisan judges

Indian Express

5 days ago

Within a month of filing charges, the Bangladesh International Crimes Tribunal (ICT) has already sentenced Sheikh Hasina to six months in jail. The actual sentencing looks prima facie valid, coming on a charge of contempt of court. The case against her is based on an audio in which she allegedly said, 'There are 227 cases against me, so I now have a licence to kill 227 people.' As Hasina has fled to India, the trial is happening in absentia, but she has a state-appointed defence counsel to represent her.
More than this particular instance, what deserves attention is the longer story of the ICT. The obvious point is that Hasina has gone from being the engineer of the ICT to a defendant in front of it. But this reversal cannot be dismissed as merely a poetic turn of justice.
There is a change in the social meaning of the prosecution of international crimes in Bangladesh. The ICT was set up not just to deliver justice, but also to consolidate a form of national mythology of the founding of Bangladesh. Such international tribunals tend to enforce the 'victor's justice', a term coined by Richard Minear, referring to the Tokyo war crimes tribunal set up by the Allied Powers.
Bangladesh's ICT follows this trend, and was widely criticised for its lack of due process. The faulty precedent is now being exploited by Hasina's opponents, whose victory has allowed them to implement an opposite version of justice and create an alternate national mythology.
In the same week when the charges of crimes against humanity were filed against Sheikh Hasina, there was another notable news which illustrated this turn. The Bangladesh Supreme Court had ordered the release of ATM Azharul Islam, a Jamaat-e-Islami leader. He was previously convicted by the same International Crimes Tribunal that will now hear the case against Hasina. Azharul Islam had been deemed responsible for a massacre which claimed more than a thousand lives during the 1971 war, but the Supreme Court overturned both the ICT's judgment and its own previous decision.
The ICT has been made to judge Hasina, taking a sharp U-turn from its intent of prosecuting Islamist opponents of Bangladesh's liberation war. The Law Adviser also attributed the release of Azharul Islam to the July uprising and painted him as an innocent victim of Hasina.
It is painful to compare atrocities. But Azharul was held responsible for the loss of a similar number of lives as Sheikh Hasina is being accused of. Azharul's crime, though, happened in a single village. The ease with which such a case was overturned points to one of two possibilities: Either the initial case against Islam was weak, or the inroads made by the Jamaat-e-Islami into the highest levels of the judiciary made it easy. Reality is likely to be a mixture of the two — a deeper perusal by a neutral observer familiar with court proceedings would reveal more.
In any case, the acquittal has solidified the legal foundation for what is known as 'accusation in a mirror'. This strategy is used by parties accused of grave crimes; they reaccuse and recriminate their opponents of similar crimes, often with little or no evidence, with the sole purpose of trivialising the crime itself. In psychology, the term DARVO (Deny, Attack, Reverse Victim and Offender) refers to a similar manoeuvre.
Such a manoeuvre is not fully pre-planned. Over the past years, many of the opponents of Bangladesh's liberation war have used such tactics to try and trivialise the crimes related to it. One rather funny attempt to trivialise genocide was made by the present Ameer of Jamaat-e-Islami Bangladesh, Shafiqur Rahman, who suggested that holding elections without reforms would lead to an 'election genocide'.
In this perspective, the ICT's verdict against Hasina is a foregone conclusion. The immediate byproduct of this process is the loss of the special status of the 1971 genocide in Bangladesh's official history, and a gradual exoneration of the pro-Pakistan leaders of Jamaat-e-Islami and the BNP from their position as the worst criminals in Bangladesh's history. The longer-term result will be that there will be no fair mechanism to prosecute future crimes against humanity.
The prosecution of crimes against humanity has a short, flawed, but hopeful history. From the Nuremberg trials to the Tribunal set up over the Yugoslav wars, no process has been free of criticism. But the politicised use of the ICT, first by the Awami League to a lesser extent and now blatantly by a fluid group of anti-Awami League conspirators, marks a real disaster of this nascent field of legal theory.
As the journalist David Bergman — a longtime observer of the ICT's workings in Bangladesh — has suggested before, the ICT and its reputation can be saved by internationalising it. While national prosecution of international crimes is a great idea, it is severely limited by cultural and social factors when it is put into practice.
That judges and lawyers with little experience in prosecuting such cases have been appointed to the ICT is itself enough grounds to mistrust it. Only the presence of judges, lawyers and observers from other neutral countries, especially ones who specialise in international law and crimes against humanity, will make the process reliable and trustworthy.
The question is which political actor can prioritise due judicial process over the immediate demands of the political climate — there is none.
Mathew teaches politics and international relations at the School of Liberal Arts and Management Studies, P P Savani University, Surat. Ramachandran is a research scholar at the Department of Communication, University of Hyderabad