Why the ICT's stated case against journalists doesn't add up

Bangladesh's International Crimes Tribunal is reportedly preparing to prosecute two journalists and a veteran rights activist over the 2013 Shapla Chattar crackdown, a move that could significantly expand the scope of crimes against humanity prosecutions in the country.

According to news reports, prosecutors will allege that former Ekattor TV managing director Mozammel Babu, presenter Farzana Rupa and pro-war crimes trial activist Shahriar Kabir aided, abetted or incited crimes against humanity in relation to the killing of Hefazat-e-Islami supporters in the early hours of May 6, 2013.

If the prosecutors do so — and if the Tribunal takes cognisance of the formal charges, due to be lodged at the court on Monday — they will be operating outside the norms of international law precedent, and it would be the clearest indication yet that politics has subsumed the Tribunal's decision-making.

A powerful section of Bangladesh's political establishment — including not just many within the governing Bangladesh Nationalist Party (BNP), but also the opposition Jamaat-e-Islami and National Citizen Party (NCP) — regards these three people as hate figures.

Babu and Rupa are seen as having been staunch supporters, or at least apologists, of many of the Awami League's repressive policies. Their TV station was among those the Awami League could most rely on for favourable coverage.

Shahriar Kabir was a key campaigner for the establishment of the International Crimes Tribunal in 2010, which prosecuted the Jamaat-e-Islami leadership for crimes relating to its support of the Pakistan military during the country's independence war. He was also unwilling — as were many others — to criticise the process despite its evident failures, which tragically resulted in the death penalty for some.

For the activists and supporters of these mainstream political parties, the three figures' political support for the Awami League is reason enough not just to criticise them — indeed not just to heap moral opprobrium on them — but to convict them of one serious crime or another and imprison them for years.

They have already been kept in detention for up to two years on evidently ‘bogus’ July 2024 murder cases, as so many others have. This in itself has been a blot on the interim government's — and subsequently the BNP's — detention and bail-rejection policies. 

Quite how detaining people on false charges differs from what the Awami League did during its time in power (and which we are all supposed to be condemning as "fascist") is anyone's guess.

Now, however, it seems that the powers-that-be see the ICT as the means by which to keep these three people further imprisoned. It stands to reason: even though the ICT is prosecuting far more serious crimes than those dealt with in the ordinary criminal justice system, the Tribunal affords the accused far fewer rights and protections. 

And going by the previous five ICT judgments, quick convictions are pretty much assured for at least one offence.

It is true that journalists have been convicted at other international tribunals for crimes against humanity, but this has occurred in only one case: when the owners and journalists of a radio station, along with the chief editor of a newspaper, were convicted for their roles in inciting the mass killing of Tutsis in Rwanda during the hundred days between April and July 1994. 

In that case, there was evidence that the journalists had repeatedly called for the "extermination" of the "cockroaches" — the term used to designate the Tutsi population as targets of violence. "Let's hope the Inyenzi [cockroaches] will have the courage to understand what is going to happen and realize that if they make a small mistake, they will be exterminated; if they make the mistake of attacking again, there will be none of them left in Rwanda, not even a single accomplice," is one example of what they said.

There is simply no evidence that Babu, Rupa — or indeed Kabir — said anything of this kind. Indeed, the principal evidence against Rupa, as so far explained by the chief prosecutor, is her documentary broadcast at least six months after the event. 

How any piece of journalism produced months after an alleged mass killing, however problematic that journalism might be, can be considered evidence of incitement, or of aiding and abetting those killings, is difficult to comprehend.

In any case, the documentary — if anyone actually cares to watch it — is not even the highly partisan piece of journalism that the chief prosecutor sought to present it as. He claimed, for example, that Rupa had denied anyone was killed or injured that night. 

It is true that the documentary includes footage of Benazir Ahmed, then head of Dhaka Metropolitan Police, stating, "We peacefully flushed out so many people from such a confined space, yet not a single person was injured—let alone killed;" and Rupa herself asks the audience, rather oddly, "Think hard, viewers—was anyone you know killed that night?" 

However, the documentary also includes one Hefazat leader, Mawlana Mohammad Yasin Habib, as stating, "I heard thousands of bullets. In the dark, it was impossible to see who was hit. We saw some protesters carrying fellows on their shoulders – maybe 10 or 20 bodies." 

And Rupa herself elsewhere lends credence to the idea that some deaths did take place, stating: "No matter how confidently the Police Commissioner claims the success of the operation, different quarters are still confused about the number of people killed that night."

The documentary also contains some sound journalism, including identifying one person as alive — Lokman Hossain — who was apparently on the human rights group Odhikar's list of 60 killed, and raising legitimate questions about the accuracy of Al Jazeera's claim that many bodies had been buried in unmarked graves in Jurain cemetery. 

In other cases, the prosecution has already submitted a number of audio intercepts to the ICT as evidence, which it sought to interpret as proof of the accused's culpability, when they do nothing of the sort. It seems the prosecutors are about to do the same with this film.

In relation to Babu, the prosecutors will no doubt seek to claim that some Ekattor TV presenters, on the day of the rally, branded Hefazat as "extremists" and used other similar pejorative language.

The first point to make is that calling people "extremists" has never before been considered by any international crimes tribunal sufficient to ground a crimes against humanity prosecution. The second point is that what Hefazat was saying that day was indeed "extreme" by most measures — certainly by Bangladesh's own constitution and penal code. 

So the leaders shouted from the podium: "War has been declared against the atheists! Today, in this city of Dhaka, the atheists will be buried!" And the crowd responded: "Allahu Akbar! Action, action, direct action!" And at another point the cround shouted: "We want hanging! We want the hanging of the atheists!" 

Another speaker said: "We will not leave Dhaka without avenging the blood! Who is with me?" — with the crowd cheering and raising sticks. This is extreme language, arguably itself prosecutable.

As to what evidence the prosecutor will show against Shahriar Kabir, this is unclear, but it is likely to be very similar to the above.

There are wider questions — not addressed in this article — as to whether the killings that did take place that night were part of a "widespread or systematic attack against a civilian population," one of the key legal tests for the offence of crimes against humanity, and as to whether there is evidence against others whom the Tribunal is seeking to include in the formal charge, for example the then foreign minister, Dipu Moni. 

Without delving into these wider questions, it is at the very least clear that politics appears to lie behind the prosecutors' inclusion of two journalists and one political activist in this charge.

While many within Bangladesh's current political establishment appear unconcerned about the integrity of the ICT process — and are willing to place political revenge above evidence and due process — the prosecution of these three people would mark a further step in the erosion of the Tribunal's credibility and standing. 

Not a step up from the previous iteration of the International Crimes Tribunal during the Awami League period, but a step — perhaps several steps — down.

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David Bergman is a journalist. He divides his time between London and Dhaka