US war crimes ambassador calls for ‘genuine process of review’ in Molla caseDavid Bergman
The US ambassador at large, heading the office of global criminal justice in the state department, urged Bangladesh authorities to subject the death sentence imposed on Abdul Quader Molla to a ‘genuine process’ of review ‘which considers the appropriateness of the death sentence.’
On Tuesday, the appellate division had sentenced the Jammat-e-Islami leader to death in a single offence of crimes against humanity involving his role in the murder of an entire family in March 1971, one day after the Pakistan army initiated a murderous crackdown in Dhaka killing scores of people.
The International Crimes Tribunal, in its earlier judgment in February this year, had sentenced Molla to life imprisonment for the same offence.
Later that same month, following large rallies at Shahbag Square in Dhaka protesting the lack of a death sentence, the government amended the International Crimes (Tribunal) Act 1973 to allow the government to appeal against the sentence issued by the tribunal.
Speaking on Sunday morning by phone to New Age and two other newspapers, Stephen J Rapp said that although he continued to have various other misgivings about the tribunal process, his ‘major concern’ now was that there should be an opportunity for Mollah to have his sentence of death subject to review.
‘On the question of a death sentence, the standard is clear, that there needs to be further review, that I really think it is important and it is important that I speak out,’ he told the three reporters.
‘The first decision giving death sentence should not be last one,’ he said. ‘In every other kind of situation and in every other place I know in the world, if a death sentence is issued, there is another opportunity to challenge it, most often at another court at another level. But to say there was none, I think would not be a fair process and would not be fair to the victims and the history and the importance of these cases,’ he said.
Although article 105 of the Bangladesh constitution provides the right of a person to seek a review of an appellate division decision in certain circumstances, the attorney general and the law minister have argued that this right does not apply to cases on appeal to the appellate division.
The ambassador, who has been to Dhaka four times in the last three years for discussion with government officials and lawyers involved in the trial process, said that it was ‘very important as a matter of international standards and international law’ that the first decision by a court deciding that there will be death sentence will ‘not be the last decision deciding a death sentence.’
He pointed out that under the International Covenant on Civil and Political Rights which Bangladesh is a state party, death penalty was only permitted when there was ‘such a high level of due process.’
Rapp said that it was important that those accused and convicted at the tribunal have the same level of rights as any other person in Bangladesh who was prosecuted of another crime which allowed for the death penalty, and where review by the appellate division was a standard procedure.
‘My essential point,’ he said, ‘I strongly urge those who have sought my counsel before hand, to recognise that in terms of the standards that need to be upheld in the prosecution of the most serious cases involving the most horrendous crimes known to human kind, in those cases it is extremely important that the rights of the accused person be respected and they do not have fewer right that those charged with other crimes.’
He pointed out that in the US, the death penalty was only permitted in those cases where there was ‘a most extraordinary amount of due process to ensure that only cases that are the strongest, and most horrendous and with aggravating circumstances and with no mitigating circumstances and where proof was solid, could result in a death sentence.’
In relation to Molla’s case in Bangladesh, Rapp said that there needs to be a review process to determine ‘whether this evidence is sufficiently strong to justify the most extreme penalty possible.’
He said that he understood that a section of people in Bangladesh thought very strongly that only a death sentence for Molla was appropriate as ‘if there was not a death sentence maybe he would be released at some point if there was political change in country, and [that] this would not be a fair result and the only sentence which is a good one is one that could not be undone.’
He however argued that the only answer to this argument was ‘to conduct this process in a very high standard and …. have people recognise that, if [the trial process] is done at a very high standard, then it should have respect of people of any political party so if there is change in government sometime in the future,’ that sentence would be acceptable to them.
He said that although he understood ‘victims who say that my relatives, my children weren’t given due process by these killers or rapists … [and so] why should we have to be so careful in these kind of proceedings given the cruelty of these crimes,’ he argued that those accused of even the most serious crimes should have due process as otherwise it would not ‘serve the interest of victims … and the interests of history if there are short cuts.’
Rapp also questioned the legal amendment that permitted the government to appeal against a sentence.
He said that whilst there was nothing extraordinary about a prosecutor’s ability to seek an increase in sentence ‘obviously to have passed [the amendment] after a particular result and to bring it in to apply to a case where the parties would not have anticipated that it would occur, is extraordinary, there is no question about that.’
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