On 18 November 2024, a historic moment unfolded as the first accused members of the past Awami League government appeared before Bangladesh’s International Crimes Tribunal. This was not just the beginning of another trial—it was poetic justice, with the very architects of the tribunal now standing accused under its laws. However, the shadow of the past tribunal looms large. Poorly trained, blatantly unfair, and driven by political whims, the earlier trials set a dangerous precedent. To honour the martyrs of July and August 2024, this tribunal must rise above its flawed predecessors, ensuring justice that is fair, transparent, and universally credible.
As a member of the defence team in the earlier trials, I feel immense pride in being part of a team that successfully exposed one of the worst examples of transitional justice. Our efforts were often aided by scandals, such as the Skype revelations and the Tribunal’s collusion in abducting a defence witness. The Tribunal’s first Chairman, Justice Md. Nizamul Hoque Nasim, even had members of the defence team arrested for photocopying prosecution-supplied documents and allowed prosecutors to use derogatory nicknames for the accused. The defence operated under police raids and constant harassment. Such depths of dysfunction must never be repeated in any future tribunal. Despite our efforts to expose the malpractices, many of our clients were executed. But as defence lawyers we exacted a heavy price from the Tribunal and the Appellate Division. The executions were secured at the price of both the Tribunal and the then Appellate Division’s reputation.
In order to ensure fair trials before the recently constituted Tribunal, the following lessons from the past require consideration.
- Compliance with Internationally Accepted Fair Trial Standards
In 2009, before trials under the International Crimes Tribunal (ICT) began, it became evident that media bias had already pre-convicted Bangladesh Jamaat-e-Islami leaders. The media, along with Awami League supporters, demanded executions, leaving little room for presumption of innocence. The ICT law of 1973 was visibly inadequate, offering minimal rights to the accused. Opinions were sought from Micheal J Beloff QC, Steven Kay QC, and Soli J Sorabjee, a former Attorney General of India on the deficiencies in the law. This was the beginning of the now well-established argument of defence counsel that the law did not ensure a fair trial. The criticisms quickly gathered the attention of the international legal community. The inadequacies of the laws were discussed at the International Bar Association and the American Bar Association. These criticisms were picked upon by the Amnesty International and Human Rights Watch.
Despite international criticism and expert opinions highlighting significant deficiencies in the law, almost no reforms were made before the trial of the Jamaat leaders. However, this firmly established that trials under these ICT law would lack fairness and impartiality. Interestingly, many of the flaws identified by the defence team over 15 years ago are now being implemented.
With many Awami League-affiliated lawyers in hiding and few of their political leaders visible, debates about the adequacy of the law have largely been absent. However, it is crucial for defence teams to continuously challenge the efficacy and fairness of the law and to stay informed on legal developments, particularly criticisms of controversial doctrines like Joint Criminal Enterprise (JCE), which will play an important role in the trials of the Awami League leaders. As seen in the evolving International Criminal Court (ICC) jurisprudence, the shift towards Joint Criminal Control by the ICC offers an opportunity for a robust legal defence in the trials of Awami League leaders.
- Setting Up a Good Defence and Prosecution Teams
During the Awami League regime, the defence teams were notably more qualified and experienced than the prosecution. Trained by Nine Bedford Row International, a leading international criminal law chamber, the defence had access to expert guidance. By contrast, the prosecution team, led by the late Golam Ariff Tipu, lacked expertise in international law. To address these deficiencies, the academic Tureen Afroze was recruited but later removed in 2019 over allegations of professional misconduct. In fact, allegations of professional misconduct had constantly plagued the earlier prosecution team.
Interestingly, many current prosecution members were previously part of the defence team. They will no doubt be leveraging their experience from the earlier trials. Chief Prosecutor Md. Tajul Islam, who led Maulana Motiur Rahman Nizami’s defence, was trained in Malaysia and the UK by Stephen Kay, KC, John Cammegh KC and Toby Cadman. The current Prosecutor (Admin) was also a member of the defence team and was regularly appointed as state defence counsel on behalf of absconding accused.
The defence teams of the Awami League leaders are now being organised. But I did not see any prominent lawyers on the first two days. This is a cause for concern. It is true that many of the leading Awami League-affiliated lawyers are ether in jail, in hiding or have fled the country. But an organised defence team is essential for a robust defence. Back then, each team was composed of a lead counsel, an experienced trial lawyer, a junior advocate, an investigator, and an international advisor. Our investigators were able to provide documentary evidence that prosecution witnesses and their families were being provided government jobs and benefits in exchange for providing false testimony. Lead counsel together with international experts would prepare the approach of the cross examination. In fact, so good was the cross-examination of prosecution witness, that the Appellate Division had to change the rules of cross examination to execute Abdul Quader Mollah. The defence received positive feedback from international lawyer, with Geoffrey Robertson KC in his report on the trials describing them as “courageous and capable.”
A well-organized, qualified defence is essential to holding the prosecution to account and upholding justice. The defence team from the previous trials demonstrated the importance of expertise, diligence, and international collaboration in presenting an effective case. As the trials begin, we must ensure that every accused person receives the full benefit of a strong, knowledgeable defence to guarantee a fair and just process.
- Ensuring Safety of Defence Counsel
Defence lawyers must feel safe while performing their duties. During the previous regime, many defence lawyers faced harassment and violence. In 2013 Barrister Munshi Ahasan Kabir, the advocate who represented Ali Ahsan Mujahid, the then Secretary General of Bangladesh Jamaat-e-Islami was attacked by a prosecution witness, leaving him hospitalized. In 2015 Md. Tajul Islam was detained at Paltan Police Station and only released after intervention of his fellow lawyers. And in 2013, lead defence counsel Abdur Razzaq left Bangladesh to avoid arrest on fabricated charges, while another lawyer was abducted in 2016, only reappearing eight years later after the Awami League government fell.
The Tribunal and prosecution must now ensure a secure and supportive environment for defence teams to provide effective legal representation, safeguarding the integrity of the justice process. Lawyers should not have to pay a high price for defending their clients.
- Preventing Executive Interference
During my time in the defence team, we successfully highlighted the significant executive interference in the trials. Ministers frequently threatened defence witnesses, and on one occasion, I filed contempt proceedings against prominent Awami League figures Sajeda Chowdhury and Motia Chowdhury. This resulted in them being cautioned by the Tribunal. But behind the scenes, there was intense pressure from the executive to hasten death sentences. Such interference, however, remained mostly concealed until the Skype scandal revealed it.
The earlier trials were subjected to executive control, not mere interference. Even before the Appellate Division had passed its judgment, Mr. Abdur Razzaq, was told by Jatiya Party leader Anwar Hossain Monju that Abdul Quader Mollah’s fate was sealed and nothing could be done. Later, after all the executions were carried out, I was informed by Mr. Mohsen Rashid that when the Prime Minister’s adviser, Salman F. Rahman had asked Sheikh Hasina not to proceed with the execution of his cousin, Salahuddin Quader Chowdhury, she made it clear there was no choice: Salahuddin Quader Chowdhury would not be spared, and Salman would lose her patronage if he interfered.
As the investigation by the Tribunal into the events of July and August 2024 progresses, the importance of ensuring a fair and transparent judicial process cannot be overstated. The lessons learned from past tribunals must inform the proceedings of the new tribunal if it is to deliver true justice. The legacy of previous trials, marked by bias, executive interference, and systemic flaws, should not be allowed to shadow the current process. However, it is not only the Tribunal and prosecution that should ensure fair trials. The accused should choose their lawyers carefully and the arguments should be co-ordinated so as to ensure that they are not contradictory. With so many accused, it is very much possible that arguments and evidence of one accused will contradict that of other co-accused. An inadequately trained and poorly coordinated defence team will seriously damage the defence case of the accused.