Legend tells that in 333 BC, while wintering at Gordium, Alexander the Great disentangled an impossible knot. The prophecy told that the man to untie that knot would become king of the land. At first, Alexander the Great attempted to unbind the Gordian knot, but frustrated by the difficulty of the task, he finally decided to slice it in half with a stroke of his sword.
This anecdote became an early example of Consequentialism, an ethical theory that considers the consequences of a particular conduct as the relevant reference to judge its moral character. The most emblematic figure of this theory is Machiavelli, who held that “for although the act condemn the doer, the end may justify him”.
This (un)ethical theory was completely rejected in the 20th century’s political world. After centuries of massacres and atrocities justified by ‘honourable’ ends, humanity undertook to establish a set of minimum rules that could not be breached under any circumstances. The Rule of Law and the respect for human rights became the two unbreakable limits to State and Prince’s Power.
Nevertheless, the current Government of Sheikh Hasina Wajed in Bangladesh has decided to recover the absolutist maxima of ‘the end justifies the means’ to deal with accountability for international crimes committed during the 1971 War of Liberation. Although seeking justice and accountability for gross human rights violations committed during the war is a desirable and legitimate end, nothing justifies depriving accused persons from their inherent rights, setting unfair and dependent trials to judge members of the political opposition, and condemn more than a dozen people to death.
Today is a tragic day for international justice. On 11 May 2016, at 00.10am, Motiur Rahman Nizami has been hanged in a Dhaka jail.
He is the fifth person to be executed upon the orders of the highly flawed International Crimes Tribunal of Bangladesh (ICTB), a tribunal created to provide justice and accountability for international crimes but whose legitimacy has been tarnished by its trend of procedural irregularities, political manipulation of the trials and legal unfairness.
Nizami was the former leader of Jamaat-e-Islami, one of the main opposition parties in Bangladesh. He was elected Member of Parliament twice and became Minister for Agriculture and then for Industries for the period from 2001-2006. In 2014 the ICTB condemned him to death for genocide and crimes against humanity. This year, the Supreme Court controversially upheld the death sentence.
A simple reading of the sentences by the ICTB and the Supreme Court permits one to conclude that Nizami, like the other defendants before him, was not afforded a trial consistent with international standards of justice. This is the position adopted by a number of leading international legal scholars in a public statement issued two days before the execution in which it stated that by “explicitly removing constitutional and fair trial protections from those due to appear before the BICT” the Government had “undermined its effectiveness and its legitimacy from the outset, and further, set the tone for what was then to develop.” The statement, signed by an independent group of prosecutors, judges and academics
According to the prosecution, Nizami was the Chief of the Al-Badr, an auxiliary para-military force of the Pakistani Army. However, despite having access to abundant resources, the prosecution was unable to provide any evidence emanating from the conflict that would demonstrate that Mr. Nizami held such position, instead preferring to rely on inference and innuendo.
The language and the narrative of the sentence is literary and partisan rather than technical, but what it is more surprising from a legal point of view is the complete lack of analysis of the relevant elements of the crimes. Although in the appeal verdict the Supreme Court confirmed the conviction for genocide, the Court examined neither the subjective requirement (i.e. the existence of a recognizable relevant group under the genocide definition) nor the mental element of the crime, which is the essential feature of the offence.
Nevertheless, the unfairness of this trial is not limited to a concerning lack of evidence and legal analysis, but infects and abruptly removes the most basic fundamental rights. The trial against Nizami was infected by an alarming inequality of arms: while the prosecution was afforded 22 months to conduct their investigations, the defence was granted a mere three weeks to prepare the case for trial; while the prosecution called 26 witnesses, the defence was prevented from calling any more than four. Even more worryingly is the fact that prosecution witnesses admitted to have provided false testimony after having received bribes to rehearse a certain narrative.
Despite the rhetoric advanced to the contrary, there is no moving away from the fact that the ICTB is a politically-manipulated tribunal. The ‘Skypegate’ scandal, which analyzed hours of conversation and emails between the ICTB judiciary and a third party, demonstrated not only that the ICTB judges follow external orders but also that the defendants’ guilt is pre-determined.
Several international human rights organizations had already criticized the ICTB and the Government of Bangladesh for explicitly depriving defendants from constitutional rights and for its partisan character. It is important to recall that the Tribunal’s jurisdiction is limited to prosecute crimes committed by just one side of the conflict.
This time, the public calls to stop the execution of Nizami were firmer and more abundant than ever before. Statements were issued by Amnesty International, Human Rights Watch, the Tom Lantos Human Rights Commission, the Bar Human Rights Committee of England and Wales and the former US Ambassador-at-Large for War Crimes. Significantly, the UN High Commissioner for Human Rights called to halt the execution of Nizami and declared that “the trials conducted before the Tribunal have unfortunately not met international standards of fair trial and due process”.
Sadly, the Government of Bangladesh simply ignored these calls and criticisms, which invites one to believe that it is time for stronger action by the international community.
The need for justice has been perverted, and allowed to mutate into a quest for revenge in Bangladesh. Without due process, without rights, a judicial process is a mere show trial, and a death sentence becomes an arbitrary killing.
The ICTB trials, and more particularly, the imminent execution of Nizami, creates further political and social tensions, as thousands of individuals demonstrated against the unfairness and arbitrariness of the processes. These tensions have become violent in the recent history of Bangladesh, placing the country on the verge of internal conflict.
Meanwhile, the Government has responded with extreme oppression to this opposition, and the country’s security record is now littered with reports of murders, extrajudicial killings, enforced disappearances and torture. Crimes that are met with an absolute impunity.
After all, for the Government of Bangladesh, the end justifies the means.