This article focuses on the challenges of ‘long-delayed’ prosecutions, that is, criminal prosecutions that begin decades after the conflict, using the experience of the International Criminal Tribunal for Bangladesh (ICT-BD) as a case study. This issue is still an insufficiently discussed topic even though such prosecutions are likely to become more common in the future. This is because of the greater emphasis that is being placed on fighting impunity around the world, as well as legal and historical reckoning with past atrocities. As one ICT-BD prosecutor put it, the establishment of the ICT-BD in Bangladesh has opened the door for the possibility of accountability in other South Asian countries and more broadly. One day, the political leaders of such countries may find the political will to try perpetrators of mass atrocities even after a long delay. Indeed, it is possible that such prosecutions may become more common:
as the pursuit of individual accountability for such crimes becomes a norm, rather than an exception, with societies increasingly willing and able to investigate atrocities perpetrated in their past.
The article examines two different theoretical frameworks from which to conceptualize the issue of long-delayed prosecutions. According to the first framework, in many transitional justice contexts, delayed trials are not only inescapable but can even be essential and beneficial to the pursuit of justice. In this sense, justice delayed may be justice developed. Delayed prosecution may be pursued as a deliberate policy choice, because it is desirable, in order to allow for democracy to develop in a stable and sustainable fashion. According to the second framework, while victims/survivors would generally prefer swift justice, there could be several reasons (political, economic, etc.) for which justice may have to be delayed. And, in situations where victims/survivors have had to endure several decades of impunity, they may consider it better late than never to have justice, even after a long delay. This perspective is based on the premise that ‘people do not forget’.
The focus of this article is mainly on the legal and broader, transitional justice challenges of long-delayed prosecutions at the ICT-BD. This tribunal is a controversial domestic criminal court, with some commentators insisting that it was established ‘to end the culture of impunity and to serve justice to the victims of 1971’, while others hold that it is politically motivated, and fraught with problems concerning due process and procedural fairness. This article, however, largely sidesteps those controversies. It focuses instead on the use of long-delayed prosecutions and old evidence in the fight against impunity in Bangladesh.
The view is taken that, while the circumstances of Bangladesh are highly specific, it remains important to examine this case study for what it can tell us about the challenges of long-delayed prosecutions and old evidence more generally.
For this study, we sought the perspectives of Bangladeshi stakeholders who were familiar with the work of the ICT-BD. To this end, between July and December 2020, we conducted a small number of semi-structured, key informant interviews with respondents recruited from amongst Bangladeshi politicians, prosecution and defence lawyers, as well as officials from non-governmental organizations. While some of these interviews were conducted in English, others were conducted in Bengali. This enabled us to reach stakeholders who may otherwise not have been able to participate because of language barriers.
Our research examines how long-delayed prosecutions in Bangladesh have had a contradictory, two-fold effect: on the one hand, they have partially broken the endemic culture of impunity that was allowed to prevail for decades in Bangladesh. On the other hand, however, they have been highly controversial and may have served to deepen alienation of the Islamist opposition in Bangladesh.
In the final analysis, in light of the endemic and destabilizing culture of impunity that was allowed to prevail for decades in Bangladesh, it is perhaps not surprising that, in their electoral manifesto for the 2008 election, the Awami League prioritized criminal trials over other transitional justice measures. Initiating prosecutions almost 40 years after the events was always going to be challenging. However, this research argues that, while such challenges may be significant, they are not necessarily insurmountable. Nevertheless, a key question that Bangladeshi policymakers should consider at this stage is whether the time has come to adopt other forms of transitional justice mechanisms to supplant or supplement the ICT-BD. Indeed, as one NGO officer put it, ‘it isn’t just about the trials…There are issues that…still need to be addressed which haven’t been addressed’.
The article concludes that the question of whether long-delayed prosecutions are desirable for a particular society remains highly context-dependent and, in some cases, mechanisms other than criminal trials may be better suited to dealing with the past.
Citation: Aldo Zammit Borda and Sajib Hosen, ‘The challenges of long-delayed prosecutions in fighting impunity in Bangladesh’, (2022) 35 Leiden Journal of International Law (pages tbc)
Dr Aldo Zammit Borda is Reader in Law at City, University of London. In collaboration with his former PhD student, Dr Sajib Hosen, he has published an article on the challenges of long-delayed prosecutions in the Leiden Journal of International Law, available in Open Access here. This research was made possible thanks to the support of a British Academy\Leverhulme Small Research Grant (Project Reference SRG19\190071).