Abdul Quader Molla’s life sentence handed down in February for crimes against humanity during Bangladesh’s war of Liberation in 1971 didn’t go down well among various sections of Bangladeshi society.
Now that Molla’s been sentenced instead to hang, even more anger and division have gripped this South Asian country of 150 million people.
February’s verdict was one of several handed down by a war crimes tribunal established in 2010 to punish individuals found guilty of colluding with the Pakistani army in 1971 in its attempt to throttle the country at birth.
Many members of Jamaat-e-Islami – Bangladesh’s largest Islamic party – have been accused of the severest of crimes including rape, torture and mass murder, and of helping the Pakistani army find and eliminate resistance fighters, minorities and intellectuals during the eight-month conflict laden with racial and religious overtones.
“The collaborators are a cancer, a tumour and must be cut out. There need not be any sympathy for the likes of them,” said Anwarul Huq, a bus driver and father of two, whose father was a freedom fighter during the 1971 war.
The Awami League, which came to power in 2007 on a mandate that included, among other things, a promise to right historical wrongs and heal the wounds of a bloodstained past that turned the dream of democratic self-determination into a martial nightmare, claiming as many as three million lives, though that figure is disputed. More than 250,000 Bengali women were also raped during the period, according to some scholars.
But far from healing wounds, the war crimes trials have picked at old scabs and opened new wounds.
Controversial trials
Molla, assistant secretary general of Jamaat-e-Islami, was given a life sentence, having been found guilty of five of the six charges against him, a verdict that was seen as too lenient, and resulted in a popular movement that converged atShahbagh Square, a major intersection in the capital, Dhaka.
Demands for the death penalty for all war criminals became a rallying cry, contrasting sharply with Jamaat-e-Islami’s reaction to the verdict, which was to dismiss the trials as rigged and politically motivated. The party maintains that Molla is innocent, and the tribunal is a government ploy to discredit Jamaat-e-Islami ahead of upcoming general elections.
“Jamaat-e-Islam has never denied that war crimes took place in 1971, nor have they denied that justice should be done. But justice cannot be done if innocent people are convicted for crimes they haven’t committed by a tribunal that makes a mockery of the legal process,” said Tajul Islam, Molla’s lawyer.
“All of these men are innocent and have been targeted for political capital.”
Since February, events have morphed into something much more sinister, and have exposed rifts in Bangladeshi society that may prove too large to bridge by any political party. However, this hasn’t prevented various interests from capitalising on the trial process.
The movement at Shahbagh was spearheaded by a collection of bloggers, some of whom professed to be atheists, a fact that has been used by religious zealots to attack it, often literally, resulting in the killing of a blogger, as well as violent assaults on others. What began as a trial of war criminals has become a conflict between secular Bangladesh and an Islamist one, creating camps that were previously far less defined, though not altogether absent.
Jamaat-e-Islam has used this to frame the trials as an attack on Islam, and the people who support it as enemies of the faith. The government, for its part, has labelled the Jamaat a party of war criminals and terrorists, and has moved to try and outlaw it. Several clashes have ensued, resulting in many deaths.
New groups such as Hefazat-e-Islam have also entered the arena, determined to defend Islam against what it sees as an anti-Islamic government.
The main opposition party, the Bangladesh Nationalist Party, has endorsed this group and already supports the Jamaat-e-Islami, hoping to position itself as the religious answer to the Awami League’s nationalistic platform.
The war crimes tribunal has since handed down six more verdicts, five of which were death sentences.
Legal chicanery?
Molla has now also been given the death penalty, after the Supreme Court enhanced his sentence, the first time in the history of Bangladesh such a move has occurred. Questions have been raised about the way this was done, which included retrofitting a law to allow the prosecutor to appeal the sentence, something that was not available before the protests at Shahbagh demanded the death penalty in February.
Some groups have challenged the legality of the sentence change under international law.
“The amendments are a clear violation of the International Covenant on Civil and Political Rights (ICCPR), to which Bangladesh is a state party,” Human Rights Watch said in a statement. “Article 14 of the ICCPR states that ‘no one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.’
“The prohibition on retroactive penalties is one of the fundamental protections of the rights of the accused in both international law, and for that matter in Bangladeshi law as well.”
Defence counsel Tajul Islam also said there were numerous irregularities in the way the sentence had been carried out.
“Firstly, for a constitutional court to pronounce a sentence in a case being conducted by a special tribunal, after the tribunal has already ruled on it, is absurd, as it undermines the tribunal’s judgement. But it did so without giving the defendant a further hearing, which, if a new sentence is being pronounced, is in keeping with the spirit of the law,” Islam said.
“Secondly, the verdict of one of the charges was changed from life imprisonment to death based on the testimony of a single witness, a witness who, when produced before the tribunal for the original verdict, didn’t identify Quader Molla as the perpetrator of the crimes. This is highly suspicious as it suggests that the prosecution has tampered with the witness.”
Sam Zarifi, International Commission of Jurists’ Asia-Pacific director, said “The prosecution’s appeal to impose the death sentence on Abdul Quader Molla was based on a law that was not in force when he was first convicted, and applying that law retroactively, especially for the death penalty, violates international law.”
Not unprecedented
However, situations such as Molla’s case are not entirely without precedence. At Nuremberg, the right to appeal was denied to defendants entirely, a feature that exists in the Bangladeshi edition. The German legal system also tried Nazi war criminals under laws that were not in place at the time they committed their crimes. But while this is an example to retroactive laws being used, it differs considerably from the situation in Bangladesh, in which the law was changed while the trial was ongoing.
Moin Ghani, an Advocate of the Supreme Court disagreed with critics of the ruling.
“The Supreme Court as the highest court in the land has the power to issue any order and direction it may deem necessary for doing complete justice. “In addition, it has jurisdiction over all matters conducted in the subordinate courts, including special tribunals,” Ghani said.
“The Supreme Court is certainly authorised to uphold the existing guilty verdict, which they have done, and deliver an appropriate and commensurate sentence. This is not a retrial and does not require a new hearing … There is nothing untoward in the way this has played out.”
Further confusion exists as to whether the sentence can be reviewed. The Attorney General stated that it can’t be under the law, while the defence says there are provisions for a review. It’s unlikely to make much difference however, since Supreme Court sentences are usually the last word, but it adds to doubts about the soundness of the war crimes tribunal, which has, since its inception, been dogged by allegations of misconduct and political bias.
Applauding the move
Not everyone feels the process that led to Molla’s death sentence is a worrying development.
“Shahbag is a good case study of public opinion informing public policy, a case study of activism playing a role in legislative change,” said Nadine Murshid, a PhD in social work and a student of public policy.
“When we talk about political actors, we talk about politicians, lobbyists, and campaign financers as primary decision-makers; it is rare for protesters to have enough clout to bring about any change in government action. That it did is a very interesting phenomenon for students of public policy and researchers interested in understanding policymaking in the developing world.”
As with previous sentences, Jamaat-e-Islami called a two-day general strike following the new sentencing, resulting in violence that has left at least one person dead and several injured, including police officers. With more sentences to be handed down next week, the tension is likely to rise, as is the death toll.
But for most ordinary people the clash between the government and Jamaat is not about the tribunal, or about war crimes anymore. Just as the Pakistani army in 1971 successfully associated fighting the state with fighting Islam, the religious right in the country has been able to repackage the issue as a conflict between Islamic and anti-Islamic forces, with “atheist” bloggers on the one side and “pious, persecuted” clerics on the other.
Siddiqur Rahman, a young tea-vendor in the heart of the city, said he believes the tribunal is just a cover to implement an Indian plan to erase Islam from Bangladesh.
“This government is made up of Hindus pretending to be Muslims. This is why they are trying to remove scholars like Sayeedi [another Jamaat member convicted of war crimes], who is an obstacle to their plan to drive Islam out of here. But we will drive the atheists out of here instead.”
Regardless of how well it plays the courts, on the streets at least the government could lose the PR campaign to views such as these.
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