In its 47-year history since independence, very few domestic matters of Bangladesh have solicited national and international attention as intensely as has its ongoing national trial of international crimes. The independence of Bangladesh in 1971 was marked by a bloody liberation war and the commission of widespread and rampant atrocity crimes. Bangladesh felt it necessary for the post-independence reconciliation and nation-building to deal with its 1971 traumatic experience. There are multiple peaceful ways open for any traumatised society to overcome its violent past in the post-conflict period. Bangladesh opted for a transitional justice process to transit from its violent past to a peaceful future, enacted a special national law to govern this justice process as early as in 1973, and established an exclusively domestic special tribunal/s, which has since 2011 been prosecuting, trying, and punishing the perpetrators of the atrocity crimes committed during the 1971 liberation war.
The commencement of this trial has become a centre of polarised debates between national and international public and expert opinions of supporters and doubters. I am one of them who has been following the unfolding of events and developments surrounding the trial ever since its inception. I have extensively read and researched all judgments, trial, appeal, and review alike, together with similar other past and present ad hoc international crimes trials in the world. This investigation led me to believe that, while some criticisms are immensely respectful and helpful for the progressive improvement of the trial process, many others are misplaced, camouflaging the very purpose of the trial to end the powerful cycle of impunity for serious atrocity crimes. It is in this context that the book contemplates the challenge of ending impunity as the cardinal goal to be achieved through peaceful means and in a manner subsumable in international criminal, humanitarian, and human rights laws.
The Bangladesh trial has a wide spectrum of aspects and issues – legal, moral, political, social, and religious. This book however does not contemplate to cover its all aspects and issues. It is very selective in scope, which is strictly limited to an examination of the hardcore legal issues arising in course of the trial in the court-rooms and out of the judgments. Predominantly, it presents an account and interpretation of the major legal issues contested by the prosecution and defence before the tribunals/court and their judicial expositions reflected in the judgments. It prioritises primary materials comprising the trial law and procedures, 35 trial judgments, 7 appeal judgments, and 7 review judgments delivered as at the end of 2018. Relevant international judgments and secondary sources are used to the extent necessary to facilitate the legal analysis of the primary materials. Apart from setting the background of the trial, the debates over various legal and non-legal views expressed, both for and against the trial, in the public domain but beyond the court-room are considered beyond the scope of the book unless the issues campaigned in these views have also been raised in the court-rooms and adjudicated by the tribunals/court. This specificity of delimitation of the ambit of the book is meant to keep it in the context of originality, not to assert that the off-court public debates are unworthy of consideration, which albeit can constitute the subject-matter of another work. Pending cases to be decided after 2018 are not considered.
The Bangladesh experience is the first ever national trial of international crimes in the era of the International Criminal Court (icc), providing for national criminal jurisdictions to complement the icc jurisdiction. The book’s objective is to show whether the Bangladesh experience (a) has any significance and legacy for such trial should parallel situations emerge in the future; (b) offers any lessons to improve the icc complementarity provision; and (c) contributes to the progressive development of Asian and international criminal jurisprudence.
The three documents are annexed for the readers to know the exact text of the substantive law and procedural rules of the trials from their primary sources. These documents, though available in public domain, are formally procured and reproduced as appendices to ensure their authenticity. The text or footnotes of the book do not cite the Bangladesh cases in full, which are available in the table of cases (pp xxi–xxiv). These cases are cited by the name of the accused/convicts, for example ‘Sayeedi judgment’, ‘Sayeedi appeal judgment’, and ‘Sayeedi review judgment’ to refer Sayeedi’s trial, appeal, and review judgment respectively. Another notable feature is multiple citations in some footnotes to underscore the widespread juristic and judicial endorsement of their respective accompanying textual point. The research-oriented nature of the book has necessitated the citation of extensive research materials used and acknowledged in footnotes and bibliography. The consolidation of these sources in this book would also be immensely helpful for future researchers in the area.
The first draft of the book suffered a setback in March 2016 when all saved files of chapters were corrupted by a cyberattack (locky virus), which could not be unlocked after successive diligent attempts by Macquarie University IT Services and beyond. I was so upset that I could not work for subsequent weeks. Eventually I gradually gathered momentum, boosted further by my wife Urmy, to forget and start afresh, which culminated into this book.
Supports from the following institutions and colleagues are gratefully appreciated: Macquarie Law School, Arts Faculty, and University for granting a research leave to conduct this research; Professor aams Arefin Siddiqui, former Vice Chancellor, Professor Rahmat Ullah, Dean of Law Faculty, and Professor Nakib M Nasrullah – all from The University of Dhaka for their generous support during my stay in the University Senate Guest House that made my observer attendance at the ict trial proceedings far more easy in Dhaka traffic; Dr Shafiqur Rahman of Macquarie Law School for his immensely benefiting research assistance; Md Jobair Alam of Macquarie Law School for his speedy reading and comments on few final chapters, and various technical supports; and Dr Jakerul Abedin, Joint Secretary, Legislative and Parliamentary Affairs Division, Ministry of Law, Justice and Parliamentary Affairs, Government of Bangladesh for supplying the official copies of the ict Act 1973 (original and amended). I am also grateful to Mohammad Golam Sarwar, Lecturer, Department of Law, University of Dhaka, for his help in the publication process in Dhaka.
My wife’s support and encouragement for my academic pursuit has always been never-ending and her tenacity remained unwavering for this book too, for which I express my profound gratitude to her. I am also thankful to my daughter Tamanna and sons, Akif and Natiq, for their technological support as well as patience and endurance during the writing period, when I was almost aloof from the family.
M Rafiqul Islam
Sydney, December 2018