Arrest warrant for Hasina: HRW calls for amending ICT law to ensure fair trials; opposes ban on party

With arrest warrants out for the deposed Prime Minister Sheikh Hasina, the interim Bangladesh government should amend the International Crimes (Tribunal) Act to ensure a fair and impartial judicial process, Human Rights Watch (HRW) said today (23 October)

The US-based rights body conveyed this in a letter on 21 October to the Ministry of Law, Justice and Parliamentary Affairs.

"Sheikh Hasina and others with command responsibility should be investigated, tried, and, if found responsible, held accountable for the widespread abuses committed during the protests in July and August," said Julia Bleckner, senior Asia researcher at Human Rights Watch.

"Ensuring fair trials will only strengthen the accountability process and is the only way to deliver genuine justice to victims and their families," she said.

On 17 October, the Bangladesh International Crimes Tribunal issued the arrest warrants for Hasina, and 44 other people, including senior members of her cabinet.

Mohammad Tajul Islam, the tribunal's chief prosecutor, said that Hasina presided over "massacres, killings and crimes against humanity," during mass protests against her government.

"Without clear commitments to international standards, the interim government risks undermining the justice process," Bleckner said.

"Governments should extradite the accused, including Sheikh Hasina, to face trial as soon as the Bangladesh government issues a moratorium on the death penalty and makes amendments to ensure a fair trial," she said.

According to the interim government's health minister, over 1,000 people were killed and many thousands injured due to excessive and indiscriminate use of ammunition by security forces during the protests, and violent attacks by her party supporters.

Hasina, who eventually resigned and fled to India, has been ordered to appear before the court by 18 November.

The tribunal, which was established under Hasina's government in 2010 to address crimes against humanity committed during the 1971 Liberation War, has previously been fraught with violations of fair trial standards.

This included the failure of evidence gathering, lack of independence of judges including collusion with prosecutors, witness tampering, denying proper rights to defense, forcibly disappearing relatives of the accused, and the use of the death penalty.

The tribunal has initiated a request for Hasina to be extradited to Bangladesh under the country's extradition agreement with India, so that she can face trial.

Several other accused leaders have also fled to India or other countries. India and other relevant governments should support Bangladesh's justice process by adhering to extradition agreements once the Bangladesh government issues a moratorium on the death penalty and makes amendments to ensure that the accused will be safe and will face a fair trial in accordance with international standards, Human Rights Watch said.

The interim government has issued important amendments to the International Crimes (Tribunal) Act, the law establishing the tribunal, including provisions for transparency by allowing the presence of international observers and for broadcasting trial proceedings.

Amendments also included important requirements for victim and witness protection.

Nevertheless, additional amendments are necessary to ensure that trials are fair and carried out in accordance with international standards and the rights enshrined in the Bangladesh Constitution.

Before moving ahead with trials, the interim government should adopt a moratorium on the death penalty and take steps to abolish capital punishment in line with international human rights law.

It should also make amendments to ensure the due process rights of the accused.

The government should additionally repeal Article 47(A) of the constitution to allow the accused protection of their constitutional rights, including the right to enforce their fundamental rights under Article 44 of the constitution.

The interim government should urgently create an adequately resourced witness and victim protection unit within the court administration.

At a minimum, such a unit should be able to protect witnesses, victims, and their family members before, during, and after court appearances, particularly for individuals who testify against serving security forces personnel.

Such a unit should also have the expertise to determine when in-country or, in extreme cases, out-of-country relocation is appropriate and to make suitable arrangements. Witnesses should know what rights they have and the protections that are available to them, both inside and outside the courtroom.

Among the amendments issued by the interim government is a proposal to ban a political organization found to have committed, aided, or abetted crimes against humanity.

While the role of political parties in grave abuses in Bangladesh should be addressed, a broad ban on an entire political party undermines other human rights obligations, including the right to free association, and sets a dangerous precedent that could allow the court to be politically weaponized, said the HRW.

This section should be amended to apply to individuals convicted of grave human rights abuses, instead of the political party with which they may be affiliated, unless the party itself is held responsible in law for such crimes, after a fair hearing.

The authority to ban a party should be limited to courts, not ministers or other members of the executive branch, it said.

Any prosecution should be rooted in fair trial standards, Human Rights Watch said. These include the presumption of innocence, the right to equal access to justice, and the right to trial before an independent, impartial, and competent court.

They also include the right to present witnesses in one's own defence, and the right of defendants to see and be able to challenge the evidence and witnesses used against them, and the right to humane detention conditions.