Arrest of a person leads to custody, which provides possible opportunity for commission of crime against the person in custody. Commission of a crime by a public servant against the arrested or detained person while in custody amounts to custodial crime. The custodial crime is preceded by arrest or detention.
The English world ‘custody’ is derived from Latin world ‘custodia’ means “guard”. The world custody in the Cr. PC always means judicial custody unless expressly indicated otherwise. Statement made by an accused person in custody to a police officer is not admissible evidence except when it leads to the discovery of facts or when it is made in the immediate presence of a Magistrate (Section 26 and 27 of the Evidence Act.)
Where the offender is locked up in a prison and future by prison officer on any servant of subjected custody is called custodial crime on the other hand at the time of detention if the defended person torture by legal authority then that called custodial crime. This type of crime is very danger in human rights. In our country this type of crime increase day by day. This scenery is very pathetic because sometimes child prisoner also affected by that type of crime and subjected torture barred mental growth of that children. So this child may be mentally incapable or criminal in future.
How long can someone be detained by the police?
A person can normally be held in police custody for up to 24 hours without being charged. This can only be longer if a Police Superintendent grants permission. After 36 hours any further detention can only be authorised by the courts.
What rights does a person have when in police custody?
A person remanded into police custody has the right to:
- free legal representation
- a phone call to inform someone that they’ve been arrested
- food and exercise
- a warm, clean cell with bedding
- at least 8 hours rest in every 24 hour period
What if the person being detained needs help?
If the person is under 17, has learning difficulties or mental health problems then they should have someone with them. This person is called an ‘appropriate adult’. The appropriate adult should be there when the police read out the person’s rights, when they are interviewed and if they are cautioned or charged.
If the person does not speak or understand English then the police will arrange for someone who speaks the same language to help. The interpreter will record the police questions and any responses in the person’s own language. They will then be able to check and sign to confirm it was an accurate record of the interview.
If the person is deaf then the police will arrange for a sign language interpreter to assist.
The Offenders’ Families Helpline is operated by POPS (Partners of Prisoners and Families Support Group) under contract to NOMS and provides information and support for families across England and Wales.
All calls are free, from landlines and mobiles, and confidential. Callers can also access a translation service.
Normally, the period of detention without charge should not exceed 24 hours, although in some cases the maximum period, with extensions, is as long as 96 hours. There are a number of stages at which continuation of custody must be authorized, in the early stages by police officers and in the later stages by magistrates. Provision is made for the appointment of custody officers and the performance by them and any other constable in charge of the prisoner of important duties. The custody officer is responsible for ordering your immediate release if he or she becomes aware at any time, perhaps after representations from a solicitor, that the grounds for the detention have ceased to apply and that there are no other grounds for continued detention. Conversely, you may not be released except on the authority of a custody officer at the police station where detention was last authorized. The custody officer is also responsible for keeping a custody record in which all information required to be logged by PACE and the Codes of Practice is recorded. Your solicitor or ‘appropriate adult’ (see later) must be permitted to consult your custody record as soon as practicable after their arrival at the station and at any other time during your detention. You or your legal representative is entitled to a copy of this very important document on leaving police detention or appearing before the court. This entitlement lasts for twelve months after release.
On Arrival at or after Arrest at the Police Station
As soon as is practicable after your arrival at the police station or answering to bail, or after arrest at the police station, the custody officer must determine whether there is sufficient evidence to charge you with the offence for which the arrest was made. The custody officer may detain you for as long as is necessary to make such a determination which includes waiting for others arrested with you to be interviewed. If the custody officer decides that there is sufficient evidence to charge you, then you should be charged and must be released unless one of the post-charge detention conditions applies.
Detention without Charge
If the custody officer decides that there is insufficient evidence to charge you, then you must be released. If the custody officer has reasonable grounds for believing that detention without charge is necessary to secure or preserve evidence relating to an offence for which you are under arrest, or to obtain such evidence by questioning you, he or she may order further police detention. The grounds for the detention must be recorded in writing on the custody record. You must be told what these grounds are.
Detention without charge cannot be authorized in your own interest, or to prevent the repetition or continuation of an offence, or to authorize police fishing trips as the evidence must relate to an offence for which you are under arrest. If the custody officer has reasonable grounds to believe that you will not answer questions – for example, because your solicitor has said so – detention cannot be extended to obtain evidence by questioning. Detention for questioning in such circumstances may well be unlawful.
Review of Detention
Periodic reviews of detention must be carried out for all persons in police custody pending the investigation of an offence. If you have been charged the review is carried out by the custody officer. If you have not been charged it is carried out by an officer of at least the rank of inspector who has not at any stage been directly involved with the investigation. The general rule is that the first review must be not later than six hours after the detention was first authorized, and subsequent reviews must take place at intervals of not more than nine hours.
Before deciding whether to authorize your detention, the review officer must give you (unless you are asleep) and your solicitor or the duty solicitor an opportunity to make oral or written representations. Representations by a solicitor may be made over the telephone. The representations might relate, for example, to the amount of evidence already obtained or to your refusal to answer questions.
An inspector may in certain circumstances, carry out these reviews by telephone or using video-conferencing facilities. You or your representative can make representation, in the appropriate way and records must still be kept.
The Detention Clock
PACE limits the length of time for which you can remain in police detention. Such limitations are based on the passage of time from a particular point.
The general rule is that the time starts on your arrival at the first police station to which you are taken after arrest. If arrest takes place at the police station the time starts when you are arrested. There may be some delay between arrest and arrival caused by necessary investigation, but there is a general provision that an arrested person must be taken to a police station as soon as is practicable after arrest.
There are special rules if the arrest takes place outside England and Wales or in a different police area from the one in which you are questioned. You should not be interviewed except at a police station, unless there are special circumstances, for instance, that a delay may lead to interference with evidence or harm to other people.
Detention Limits and Police Extensions
The general rule is that you may not be kept in police detention for more than 24 hours without being charged. This period can be extended by a maximum of twelve hours on the authority of an officer of the rank of superintendent or above after giving opportunity for representations to be made. The extension can only be authorized where:
- The officer has reasonable grounds for believing that the offence is an arrestable offence.
- The investigation is being conducted diligently and expeditiously.
- Detention without charge is necessary to secure or preserve evidence of an offence for which you are under arrest or to obtain evidence by questioning.
The authorization cannot last beyond 36 hours from when the detention clock began.
Detention Limits and Magistrates’ Extensions
You must be released by the end of 36 hours from the starting point, unless an application is made to a Magistrates’ Court sitting in private. The application is made on oath by a police officer and supported by written information, which must state the nature of the offence; the general nature of the evidence for the arrest, what enquiries have been made and are proposed, and the reason for believing the continued detention is necessary.
You are entitled to a copy of the information and to be legally represented- you can have an adjournment to obtain legal representation. The police officer will be at court to be cross-examined and representations may be made to the magistrate(s). These might be directed, for example, towards any delay in the investigation or in making the application, whether there is a serious arrestable offence involved, whether detention is necessary, and whether there is sufficient evidence for you to be charged.
The court may only authorize further detention if:
- The offence is a serious arrestable offence.
- The investigation is being conducted diligently and expeditiously.
- Further detention is necessary to secure or preserve evidence relating to the offence or to obtain such evidence by questioning you.
T he court may authorize further detention for up to 36 hours from the time that the application is granted. A further extension of up to 36 hours may be granted if the same procedure is followed. The total maximum period of detention is 96 hours from the original starting point – except under the Terrorism Act 2000 where the maximum is currently seven days.
Detention after Charge
After you have been charged, the custody officer must order your release unless one of the following post-charge detention conditions applies:
- Your name or address is unknown or doubted.
- Detention is necessary to prevent your committing an offence – if you were arrested for an imprisonable offence – or from causing physical injury to any other person or damaging property – if you were not arrested for an imprisonable offence.
- Detention is necessary to prevent your failing to appear in court to answer bail.
- Detention is necessary to prevent your interfering with the administration of justice or with the investigation of offences.
- You are over 14 and detention is necessary to take a sample of urine or a non-intimate sample (see later) in order to find out whether you have specified Class A drugs in your body.
- Detention is necessary for your own protection.
- A juvenile needs to be detained in his or her own interest – this is additional to the other grounds that may apply equally to juveniles.
A person who has been detained after charge must be taken to court as soon as practicable and not later than the first sitting after charge. The police are also able to impose bail conditions.
The circumstances in which an arrested person may be kept in police detention are set out in PACE. The detention is unlawful unless the provisions of PACE are complied with. A key figure in the scheme is the custody officer, a police officer of at least the rank of sergeant.Normally, the period of detention without charge should not exceed 24 hours, although in some cases the maximum period, with extensions, is as long as 96 hours. There are a number of stages at which continuation of custody must be authorised, in the early stages by police officers and in the later stages by magistrates. Provision is made for the appointment of custody officers and the performance by them and any other constable in charge of the prisoner of important duties. The custody officer is responsible for ordering your immediate release if he or she becomes aware at any time, perhaps after representations from a solicitor, that the grounds for the detention have ceased to apply and that there are no other grounds for continued detention. Conversely, you may not be released except on the authority of a custody officer at the police station where detention was last authorised. The custody officer is also responsible for keeping a custody record in which all information required to be logged by PACE and the Codes of Practice is recorded. Your solicitor or ‘appropriate adult’ (see later) must be permitted to consult your custody record as soon as practicable after their arrival at the station and at any other time during your detention. You or your legal representative is entitled to a copy of this very important document on leaving police detention or appearing before the court. This entitlement lasts for twelve months after release.
Victims of Custodial Torture Cry for Justice in a Public Trial
A news report and an editorial from the New Age, sent by odhikar, forwarded by the Asian Human Rights Commission
Bangladesh: Victims of Custodial Torture Cry for Justice in a Public Trial.
Mock trial calls for prosecution of people involved in torture Staff Rafique-ul Haq speaks at a mock trial called Tribunal against Torture organised by Odhikar and the European Union at the BRAC Centre Inn in Dhaka.
A mock trial called Tribunal against Torture on Tuesday called for prosecution of law enforcement agencies members for their involvement in secret killings, enforced disappearances and torture in custody as such crimes amount to the breach of the constitution. The jury said that all the people accused in the mock trial were criminals and there should be no scope of indemnity for them.
The most senior member of the jury, Rafique-ul Haq, also a former attorney general, in his opinion said that the executive and the judiciary need to change their mentality and if courts were not bold enough, such torture would continue. ‘It is not enough to enact laws, their enforcement has to be ensured to uphold human rights.’ ‘We often call the Appellate Division a ‘stay division’ but Mahmudur Rahman had to face seven months’ imprisonment for making the same remark. The highest punishment for it is imprisonment for six months but he was given a month extra in bonus,’ Rafique-ul Haq said.
Another member of the jury, Mofazzal Karim, a former bureaucrat, stressed the need for good governance to stop all forms of torture. ‘Incidents of torture are increasing as the backbone of the administration has collapsed,’ he said.
Citing the deposition of Parvin Huq, sister of Faruk Hossain Kamal who was tortured to death in police custody, jury member Farida Akhtar said that anyone accused of any offence should be brought to justice. ‘It is an extreme injustice to kill him instead putting him on the dock.’ The three-member panel heard deposition of of six victims or their relatives who narrated the incidents.
Shahjahan Khan, father of the deceased Rabiul Islam Khokan from Noakhali, Tania Sultana Moly, wife of the deceased soldier of the then Bangladesh Rifles, businessman Abu Reza Rony Maradona from Magura and the acting Amar Desh editor Mahmudur Rahman also gave their depositions in the tribunal. Jurists Shaheen Ahmed and M Shamsul Haque acted for the victims.
The situation became heart-rending when the relatives began wailing as they were describing the incidents of torture. It became tough to hold tears for the audience when Golam Sarwar, father of nine-year-old Belal Hossain, described torture of the little boy in custody.
The programme was held as part of the observance of International Day in Support of Victims of Torture organised by Odhikar and the European Union at the BRAC Centre Inn, followed by a discussion in the afternoon.
The head of EU delegation in Dhaka, William Hanna, said that the prime concern of European Union now was human rights situation across the world and it was monitoring the developments. He said the European Union was also working in Bangladesh in cooperation with organisations such as Odhikar. He also referred to the reaffirmation of Catherine Ashton, the EU high representative, about the European Union’s commitment to the prevention and eradication of torture and other cruel, inhumane or degrading treatment or punishment and to the full rehabilitation of torture victims in all parts of the world. ‘This day is an occasion to speak up against this abhorrent violation of human rights and human dignity. Torture is not only a tragedy for the victims, it is also degrading and injuring those who perpetrate it to societies which tolerate such outrage. The absolute prohibition of torture and other cruel, inhuman or degrading treatment or punishment is unequivocally established under international law. No culture of impunity is acceptable,’ Hanna quoted Ashton as saying.
In response, the moderator of session, the New Age editor, Nurul Kabir, citing a New York Times article written by former US president Jimmy Carter, said that Bangladesh also expects the European Union to monitor the west-sponsored violation of human rights in Iraq, Afghanistan and other countries.
Communist Party of Bangladesh presidium member Haider Akbar Khan Rono said that there is an elected government in Bangladesh and it is in no way democratic but absolutely fascist. Citing a number of incidents of torture and disappearances, Haider Akbar Khan said that there was no solution to such fascist regime but a movement against fascism as it happened in Europe. ‘We become totally helpless when the state lies,’ he said.
The Samakal managing editor, Abu Sayeed Khan, recalled the torture in custody during movement against the military junta in 1983. ‘We had hopes that after establishing democracy, such things would be eliminated. The irony is that the people who formed governments through democratic means also used torture as a tool of repression,’ he said.
Ganasanghati Andolan’s central coordination committee member Abdus Salam stressed the need for a democratic metamorphosis of the state as the state has lost its acceptability to the people with such incidents of torture. He said that the people’s representatives had become pawns of their respective parties and could not enact laws in the interest of the people.
Rajekuzzaman Ratan, a central committee member of Bangladesher Samajtantrik Dal, said that a culture of oppression had been created and the people need to understand the politics behind it and its prime motive that is to plunder wealth. He also stressed the need for resistance against torture alongside protective measures for the victims.
Kalpana Akhtar of the Bangladesh Centre for Workers’ Solidarity narrated the killing of apparel worker leader Aminul Huq. She said that Aminul had been abducted by intelligence agency people from Baipail and the Ghatail police had found him dead after two days. He could be identified after his photograph was published in newspapers. He was buried as ‘unnamed’ in a graveyard at Kalihati in Tangail. ‘I am quite sure that the police would not have prepared the inquest report if they had known who he was. The report said that both of his knees were broken, there was a mark of drilling beneath the right knee and all of the toes were hammered. Even after such cruel torture, he was strangled,’ she said. Kalpana called for resisting such a culture of torture. ‘Today six people gave their depositions. If we do not resist it, tomorrow there will be 60 people to give their depositions. We cannot allow such things to continue.’
Odhikar also held protests in 25 district headquarters marking the day and submitted memorandums to the district administrations seeking an end to torture. A photographic exhibition of Shahidul Alam of Drik called Corssfire also marked the observance of the day.
Custodial torture undermines human rights and dignity
THAT at least 64 people fell victim to custodial death, while 238 more to custodial torture, as mentioned in a recent report of the rights organization Odhikar, which has been quoted in a New Age report on Tuesday, between January 6, 2009 — the day the Awami League-Jatiya Party government took office — and May 31, 2012 is not only alarming but also marks a gross violation of the incumbents’ election pledge to establish the rule of law and ‘strictly’ enforce human rights. The government is yet to enact a law directed to end ‘torture and inhuman or degrading treatment by law enforcers or government officials’ although a bill in this regard has been placed in parliament by one of its lawmakers on September 10, 2009 while the parliamentary standing committee on private members’ bill recommended its passage on March 10, 2011 after completing necessary scrutiny. Meanwhile, like its predecessors- especially the previous political government of the Bangladesh Nationalist Party-led alliance, the incumbent administration also appears hell-bent on defying the High Court directives issued in April 2003 which were aimed at stemming excesses and atrocities by law enforcers in terms of arresting people out of mere suspicion and interrogating the remanded detainees. According to the report, the court’s directives included amendment to Section 167 of the Code of Criminal Procedure, building rooms with glass walls in jails for interrogation of the arrested and, until such kind of rooms are made available, conducting interrogation at jail gates in the presence of relatives of the arrested and lawyers.
Notably, while it is yet to ratify the United Nations Optional Protocol to the Convention against Torture, Bangladesh ratified the original convention in 1998 and the International Covenant on Civil and Political Rights in 2000. That apart, the constitution describes torture as a criminal act. Yet, successive governments since independence have allowed members of different law enforcement agencies to resort to this illegal act when it comes to even dealing with their opponents, political or otherwise. With the passage of time, giving a freehand to the law enforcers may have contributed to the emergence of extrajudicial executions of various sorts, which have become widespread in recent times despite criticisms and condemnations at home and abroad.
Inflicting physical torture on one eventually leads to distorting the victims’ soul which amounts to dehumanising them. In addition, without being dehumanised themselves, the torturers cannot engage in such heinous acts. Against this backdrop, application of torture techniques by the law enforcers relates to undermining human rights as well as human dignity of the tortured. Hence, not only the human rights watchdogs but also those who seek to have a humane society need to raise their voice against such acts. At the same time, however, the court also immediately needs to come forward with follow-up actions to make the government come out of its apathy to reining in the law enforcers, particularly when it concerns custodial death and torture.
Torture, Extrajudicial Killings, and Other Abuses
Despite strong evidence that security forces were continuing to arbitrarily arrest people, often torturing and then killing them in custody, the home minister refused to acknowledge the need for accountability. Prime Minister Sheikh Hasina said her government had zero tolerance for extrajudicial killings, but failed to properly investigate allegations and prosecute the perpetrators.
On May 21, 2011, William Gomes, a representative of the Asian Human Rights Commission, was allegedly picked up by plainclothes RAB personnel and taken to a place his abductors described as “headquarters,” where he was stripped naked, had his hands and legs cuffed, was forced into stress position, and was verbally abused and threatened with physical torture. He was interrogated about his work documenting human rights violations.
In at least two cases, the Home Ministry ignored its own findings that RAB was responsible for wrongful killings. According to Odhikar, a Dhaka-based human rights organization, at least 1,600 people have been victims of extrajudicial killings since 2004. Before the Awami League came to power, its leaders had accused RAB of widespread extrajudicial killings; they now claim that all deaths occur during armed exchanges with criminals.
The military and police continue to employ torture and cruel, inhuman, or degrading punishment against suspects, violating both domestic and international law. Many deaths in custody are never investigated. According to Odhikar, at least 12 people died in custody due to police torture in 2011.
Trials for Bangladesh Rifles Abuses
Military tribunal hearings against members of the Bangladesh Rifles (BDR) accused of participating in a February 2009 mutiny continued through 2011. Military courts convicted nearly 1,000 soldiers in mass trials that did not meet fair trial standards, among other things because the prosecution failed to produce individualized evidence against each detainee. In a single trial that concluded on June 27, 657 of 666 defendants were found guilty and sentenced to prison terms ranging from four months to seven years.
Several thousand other soldiers remain in custody awaiting trial in military courts, while another 847 have been charged under the Bangladesh Criminal Code. Some of those charged under the criminal code face the death penalty and many do not have lawyers.
The government did not investigate allegations of torture and possibly as many as 70 custodial deaths during investigations after the mutiny. Many suspects were denied access to legal counsel, particularly in the few months directly after the mutiny.
The government increased surveillance of Odhikar and in particular, Adilur Rahman Khan, Odhikar’s secretary advocate; threatening and harassing staff; and delaying approvals of projects.
After Nobel Peace Laureate Mohmmad Yunus, founder of the Grameen Bank, was removed from his position at the bank because he had exceeded the mandatory retirement age, there were mysterious attacks on his supporters. In May Sagirur Rashid Chowdhury, an accounts officer at the bank, was picked up outside the office by plainclothes men. When he was released his body bore signs of severe beatings. He said his abductors had asked him to issue a public statement withdrawing support for Yunus. In September six women directors and one former director of the board of directors of the Grameen Bank, all beneficiaries of the microcredit system, suffered intimidation by police who came and searched their rooms.
The government continued legal action aimed at intimidating the Bangladesh Center for Worker Solidarity (BCWS), a trade union group. After revoking BCWS’s registration one agency demanded that two union leaders, Kalpona Akhter and Babul Akhter, both facing criminal charges, resign as a precondition to renewed registration of the organization. BCWS has denied all allegations against it.
International Crimes Tribunal
To address fair trial concerns, the government in June 2011 amended the International Crimes (Tribunals) Act of 1973 to include some basic due process concerns, such as the right to the presumption of innocence and a fair and public hearing. But the law, established to prosecute those responsible for atrocities in the war of 1971, still fell short of international standards. The definitions of war crimes, crimes against humanity, and genocide did not conform to international standards and the government failed to amend the law to ensure due process. Defense lawyers, witnesses, and investigators said they had been threatened.
The tribunal in 2011 began proceedings in its first case, that of Jamaat-e-Islami leader Delawar Hossein Sayedee, accused of involvement in war crimes in the 1971 war.
Protection of Indigenous People
Bangladeshi authorities did little to prevent intensifying violence and discrimination against indigenous groups residing in the Chittagong Hill Tracts. There were repeated clashes between ethnic and religious minority groups and “settlers” who belong to the majority Bengali community. These clashes were in part a result of government failure to implement its agreement with the indigenous communities to protect their rights.
Deaths from torture
- Did 47 BDR personnel die whilst in custody?
- Has the government ordered any investigations into these deaths? If so, perhaps the government should publish the reports.
- Is it credible that all the 47 people died of natural causes when the family members consistently state that prior to detention their deceased relatives were in good health?
- Is the brother of Mozammel Hoque (Pilkhana barracks, Dhaka) lying when the report quotes him as saying that when he received his brother’s body from Mitford hospital the soles of his feet and the palms of his hands looked wrinkled and tender, that his neck and chin were covered in mud and that he was told by the person who conducted the bathing ritual that his hands and feet looked ‘decomposed … bloodless and shattered.’
- Is the wife of habildar Mohiudin Ahmed (Halishahar barracks, Chittagong) providing a false statement when she says that when she recovered her husband’s dead body it was ‘terribly bruised’ and that her brothers, who looked at the body more carefully, found ‘that the back area by the hip was completely black and blue, and there were severe lacerations on the legs and his upper back.’
- Is the Dhaka Medical College post mortem into Ahmed’s death which reportedly states that ‘Ahmed has been beaten on the lower half of his body’ also false?
- Is the wife of Nurul Amin (Rangpur barracks) a liar when she talks about how her husband Nurul Amin of the 34th Rifles Battalion was tortured? ‘He was almost incoherent when he described to me what had happened to him: electric shock to his genitals and ears, nails were pulled off his toes. He is almost blind now from what happened, and I think he is brain damaged.’ Is it also untrue when she says that when she first saw him following his detention, ‘He was lying bleeding on the floor, his face so swollen that he looked disfigured. I could hardly recognise him’?
- If what Amin’s wife says is untrue, why did he need four people to lift him when he was produced before the magistrate? Why did the magistrates immediately order him to be sent to the Dhaka Central Jail, where he stayed for a year?
- Is the son of Abdul Jail Sheikh (Pilkhana barracks) lying when he says that his father told him that he was taken to the Rapid Action Battalion office in Dhaka, hung upside down from the ceiling and beaten regularly, and ‘all the nails were ripped out of his fingers and toes and he was subjected to electric shocks’?
- If Abdul Jail Sheikh was not tortured, how come his legs have become paralysed since his detention, and he has no control over his bladder or bowel movement?
- What is the government’s response to the statement of the wife of Nasiruddin Khan (Pilkhana barracks)? She says that when she saw her husband in hospital, ‘I couldn’t recognise him. His body and face were all swollen, he had an oxygen mask on, both kidneys had failed’. She also says that one of the doctors told her that the kidney problems had been caused by electric shocks, that there were signs of torture all over his body, and that he had burning sores, broken legs, arms and fingers. When she was able to speak to her husband, she says that he told her that ‘he has been hung upside down from the ceiling, beaten and subjected to electric shock’ at the RAB headquarters.
- If the claims by Nasiruddin Khan and his wife (above) are all lies why can he only now walk with crutches? And why do his admittance papers to the kidney hospital state that he was taken there by RAB?
- Is the son of Nulamin Sardar (Pilkhana barracks) a liar when he says that his father told him that electric shocks had been administered to his genitals 5 to 6 times?
- What about the mother of Sepoy Al Masum (Pilkhana barracks), who says that her son told her that he had been severely tortured by RAB: he was beaten on his legs and knees, hung upside down and beaten on the soles of his feet. When she visited her son again after a subsequent remand, the report quotes her as saying, ‘He couldn’t walk; his eyes were swollen shut. He is 5 foot 9 inches tall and he looked easily a foot shorter than that. He told me that they kept giving his injections and he would faint, then more injections and then beatings.’ She also says that her son showed her his thumb which had been hammered flat. Is the government claiming that these are all lies?
- What is the government’s response to the wife and mother of Kamrul Hasan (Pilkhana) who saw him in Dhaka Medical College Hospital? He told them that he had been tortured by RAB, described electric shocks to his genitals and head, having had his head knocked against the walls, and the soles of his feet beaten?
If this is not correct, why was Hasan attached to a urine catheter, with his mother reporting seeing blood in his urine, and unable to walk?
- How is it possible for a person to receive a fair trial on an allegation of mutiny when in the case of the 44th battalion, 675 accused are being prosecuted together in one courtroom?
Can 847 people, many of whom face charges that carry the death penalty, receive a fair trial when they are all being prosecuted together?
- Why do so many of the accused BDR men not have lawyers? Without a lawyer, how can the accused get a fair trial?
Why do so many of the accused have no knowledge about the charges against them?
- How can one lawyer provide proper representation to any of the detained men when he is acting for as many as 350 accused in the one case?
- Why is the prosecution not providing witness statements to the accused?
- Why were lawyers not allowed to ask questions in the BDR mutiny trials, and were only allowed to instruct the accused about the questions which they could ask?
- Why are the lawyers given very limited access to speak to the detained BDR men?
- Why are the accused not allowed privileged communications with them as allowed by the rules?
Those in the Bangladesh Rifles (since renamed Bangladesh Border Guards) responsible for the killings, violence and other crimes that took place on February 25 and 26, 2009 should obviously be held accountable; however, the process of accountability in a civilised country like Bangladesh should not include custodial killings, torture and unfair criminal trials.One would like to believe that the government has a credible response to these questions but experience suggests that this is unlikely to be provided.
But perhaps the cruellest thing of all for those of us living in Bangladesh is that unless the government starts to acknowledge its responsibility for the human rights violations by its law enforcement agencies, nothing at all will change for the better.
Human Rights Watch Report on BDR Trials – Custodial deaths, torture and unfair trial?
Has any member of the Government actually read the recent Human Rights Watch report alleging custodial deaths, torture and unfair trials following the Bangladesh Rifles mutiny?
The law minister’s speedy dismissal of the allegations as ‘false, baseless and concocted’ would suggest that he at least has not; that the government is only interested in providing a ‘political’ response to the report rather than one which engages with the details of the international human right organization’s claims.
Human Rights Watch is generally respected for the quality of its research, but even it can make mistakes-and it is always difficult to investigate and corroborate allegations of custodial torture. There is, therefore, nothing wrong with a government contesting allegations made by the organization-but for any criticisms to have credibility they must actually engage with the substance of the report’s findings.
Alleging that the HRW is part of some kind of international conspiracy, and that its claims are false, might feel satisfying at the time and make instant headlines, but I would guess that name-calling an organization like the HRW only acts to discredit the perception of the government held by the general public.
Whilst most of the information in the report on torture comes from the relatives of the detained/deceased BDR men, the claims made by the HRW are detailed and consistent, is made by named (not anonymous) individuals and are in a number of cases backed up by post mortem reports, medical records and the current poor physical health conditions of the detained men.
So if the law minister expects anyone other than the Awami League’s party loyalists to accept that the report is ‘false, baseless and concocted’, then first he must answer some obvious questions that any cursory reading of the report will raise.So let me make a challenge to the law minister-or indeed anyone else in the government. Before making any further comment about the HRW report, first please respond to these 25 questions.
The Asian Human Rights Commission worked in close collaboration with the Private Member in the drafting of this law. This draft has incorporated the most developed conceptions of law on this matter and deals with some of the more difficult problems of investigations and prosecutions on torture in the Bangladesh context.The global community is deeply committed to the promotion of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and for the elimination of torture globally. The experiences of many countries that have already had similar laws for a long period now are valuable examples for Bangladesh. The successful adoption of this law in the country will enhance the respect for the rule of law and protect the rights of the people, particularly relating to fair trial.The Bangladesh Awami League ratified the CAT on 5th October 1998. One of the requirements of the CAT is that the ratifying state must enact an enabling law to make torture declared as a serious crime recognized in the country. This has not been done so far and this requirement will be fulfilled if the proposed bill, now placed before parliament, is enacted as soon as possible.In the past there had been various objections to treating torture and custodial deaths as serious crimes in Bangladesh. Some have argued that Bangladesh being a third world country requires the use of third degree methods for the control of crime and for dealing with serious political opponents to ruling regimes. However, the adoption of such narrow views will only denigrate Bangladesh before the eyes of its own people as well as the international community.The development of democracy and rule of law requires that the primitive methods of dealing with criminal investigations should be displaced. Experience has clearly demonstrated that allowing the use of torture leads to the abuse of the powers. The police and military often use these powers for unjust enrichment by way of bribery and corruption and also to suppress freedom of expression and association.
The development of a proper criminal investigation system depends on the possibility of proper inquiries being conducted into crimes without brutal methods such as torture and cruel and inhuman treatment.
The presentation of this bill before parliament should provide an opportunity for an enlightened discussion on all matters relating to justice in Bangladesh. We hope that all persons of good will and all civil society leaders will take an active part in the promotion of this proposed bill so that both the public and the civil service will be able to appreciate the benefits of this law.
The Asian Human Rights Commission urges all law makers of Bangladesh to take an active part in the passing of this law as soon as possible, thus providing the people of the country the benefit of a law that they are very much entitled to.
Violation of Human Rights in Bangladesh
“The ‘disappearances’ of detainees in the custody of Russian federal forces in Chechnya is a major human rights crisis that the Russian government and the international community must address.”
“While combat between federal forces and Chechen rebels has for the most part ceased, the ‘disappearance,’ torture, and summary execution of detainees continues, marking the transition from a classical internal conflict into a ‘dirty war,’ where human rights violations and not the conquest or defense of territory are the hallmarks.”
There is now near-universal consensus that all individuals are entitled to certain basic rights under any circumstances. These include certain civil liberties and political rights, the most fundamental of which is the right to life and physical safety. Human rights are the articulation of the need for justice, tolerance, mutual respect, and human dignity in all of our activity. Speaking of rights allows us to express the idea that all individuals are part of the scope of morality and justice.
To protect human rights is to ensure that people receive some degree of decent, humane treatment. To violate the most basic human rights, on the other hand, is to deny individuals their fundamental moral entitlements. It is, in a sense, to treat them as if they are less than human and undeserving of respect and dignity. Examples are acts typically deemed “crimes against humanity,” including genocide, torture, slavery, rape, enforced sterilization or medical experimentation, and deliberate starvation. Because these policies are sometimes implemented by governments, limiting the unrestrained power of the state is an important part of international law. Underlying laws that prohibit the various “crimes against humanity” is the principle of nondiscrimination and the notion that certain basic rights apply universally.
The Various Types of Violations
The number of deaths related to combat and the collateral damage caused by warfare are only a small part of the tremendous amount of suffering and devastation caused by conflicts. Over the course of protracted conflict, assaults on political rights and the fundamental right to life are typically widespread. Some of the gravest violations of the right to life are massacres, the starvation of entire populations, and genocide. Genocide is commonly understood as the intentional extermination of a single ethnic, racial, or religious group. Killing group members, causing them serious bodily or mental harm, imposing measures to prevent birth, or forcibly transferring children are all ways to bring about the destruction of a group. Genocide is often regarded as the most offensive crime against humanity.
The term “war crime” refers to a violation of the rules of jus in bello (justice in war) by any individual, whether military or civilian. The laws of armed conflict prohibit attacks on civilians and the use of weapons that cause unnecessary suffering or long-term environmental damage. Other war crimes include taking hostages, firing on localities that are undefended and without military significance, such as hospitals or schools, inhuman treatment of prisoners, including biological experiments, and the pillage or purposeless destruction of property. Although clearly outlawed by international law, such war crimes are common. According to Kofi Annan, Secretary-General of the United Nations, it is increasingly true that “the main aim…[of conflicts]… is the destruction not of armies but of civilians and entire ethnic groups.”
Women and girls are often raped by soldiers or forced into prostitution. For a long time, the international community has failed to address the problem of sexual violence during armed conflict. However, sexual assaults, which often involve sexual mutilation, sexual humiliation, and forced pregnancy, are quite common. Such crimes are motivated in part by the long-held view that women are the “spoils” of war to which soldiers are entitled. Trafficking in women is a form of sexual slavery in which women are transported across national borders and marketed for prostitution. These so-called “comfort women” are another example of institutionalized sexual violence against women during wartime. Sexual violence is sometimes viewed as a way to destroy male and community pride or humiliate men who cannot “protect” their women. It is also used to silence women who are politically active, or simply inflict terror upon the population at large. Mass rapes may also form part of a genocidal strategy, designed to impose conditions that lead to the destruction of an entire group of people. For example, during the 1990s, the media reported that “rape and other sexual atrocities were a deliberate and systematic part of the Bosnian Serb campaign for victory in the war” in the former Yugoslavia.
Rather than simply killing off whole populations, government forces may carry out programs of torture. Torture can be either physical or psychological, and aims at the “humiliation or annihilation of the dignity of the person.” Physical torture might include mutilation, beatings, and electric shocks to lips, gums, and genitals. In psychological torture, detainees are sometimes deprived of food and water for long periods, kept standing upright for hours, deprived of sleep, or tormented by high-level noise.
Torture is used in some cases as a way to carry out interrogations and extract confessions or information. Today, it is increasingly used as a means of suppressing political and ideological dissent, or for punishing political opponents who do not share the ideology of the ruling group.
In addition to torture, tens of thousands of people detained in connection with conflicts “disappear” each year, and are usually killed and buried in secret. Government forces “take people into custody, hold them in secret, and then refuse to acknowledge responsibility for their whereabouts or fate.” This abduction of persons is typically intended to secure information and spread terror. In most cases, interrogations involve threats and torture, and those who are arrested are subsequently killed. Corpses are buried in unmarked graves or left at dumpsites in an attempt to conceal acts of torture and summary execution of those in custody. Because people disappear without any trace, families do not know whether their loved ones are alive or dead.
Various lesser forms of political oppression are often enacted as well. Individuals who pose a threat to those in power or do not share their political views may be arbitrarily imprisoned, and either never brought to trial or subject to grossly unfair trial procedures. Mass groups of people may be denied the right to vote or excluded from all forms of political participation. Or, measures restricting people’s freedom of movement may be enforced. These include forcible relocations, mass expulsions, and denials of the right to seek asylum or return to one’s home.
Political oppression may also take the form of discrimination. When this occurs, basic rights may be denied on the basis of religion, ethnicity, race, or gender. Apartheid, which denies political rights on the basis of race, is perhaps one of the most severe forms of discrimination. The system of apartheid in South Africa institutionalized extreme racial segregation that involved laws against interracial marriage or sexual relations and requirements for the races to live in different territorial areas. Certain individuals were held to be inferior by definition, and not regarded as full human beings under the law. The laws established under this system aimed at social control, and brought about a society divided along racial lines and characterized by a systematic disregard for human rights.
In addition, women are uniquely vulnerable to certain types of human rights abuses in addition to the sexual abuse mentioned above, entrenched discrimination against women is prevalent in many parts of the world and leads to various forms of political and social oppression. This includes strict dress codes and harsh punishments for sexual “transgressions,” which impose severe limitations on women’s basic liberties. In addition, women in some regions (Africa , for example) suffer greater poverty than men and are denied political influence, education, and job training.
Human Rights Violations and Intractable Conflict
Many have noted the strong interdependence between human rights violations and intractable conflict. Abuse of human rights often leads to conflict, and conflict typically results in human rights violations. It is not surprising, then, that human rights abuses are often at the center of wars and that protection of human rights is central to conflict resolution.
Violations of political and economic rights are the root causes of many crises. When rights to adequate food, housing, employment, and cultural life are denied, and large groups of people are excluded from the society’s decision-making processes, there is likely to be great social unrest. Such conditions often give rise to justice conflicts, in which parties demand that their basic needs be met.
Indeed, many conflicts are sparked or spread by violations of human rights. For example, massacres or torture may inflame hatred and strengthen an adversary’s determination to continue fighting. Violations may also lead to further violence from the other side and can contribute to a conflict’s spiraling out of control.
On the flip side, armed conflict often leads to the breakdown of infrastructure and civic institutions, which in turn undermines a broad range of rights. When hospitals and schools are closed, rights to adequate health and education are threatened. The collapse of economic infrastructure often results in pollution, food shortages, and overall poverty. These various forms of economic breakdown and oppression violate rights to self-determination and often contribute to further human tragedy in the form of sickness, starvation, and lack of basic shelter. The breakdown of government institutions results in denials of civil rights, including the rights to privacy, fair trial, and freedom of movement. In many cases, the government is increasingly militarized, and police and judicial systems are corrupted. Abductions, arbitrary arrests, detentions without trial, political executions, assassinations, and torture often follow.
In cases where extreme violations of human rights have occurred, reconciliation and peacebuilding become much more difficult. Unresolved human rights issues can serve as obstacles to peace negotiations. This is because it is difficult for parties to move toward conflict transformation and forgiveness when memories of severe violence and atrocity are still primary in their minds.
International humanitarian law has been enacted to preserve humanity in all circumstances, even during conflicts. Such law “creates areas of peace in the midst of conflict, imposes the principle of a common humanity, and calls for dialogue.” It rules out unlimited force or total war and seeks to limit the use of violence in the hopes of maintaining the necessary conditions for a return to peace. Various international committees are in place to monitor compliance with human rights standards and report any violations. When breaches do occur, they are brought to the attention of international tribunals or tried in an international court or war crimes tribunal.
But conflicts sometimes progress beyond the state at which international law can help. As the number of victims grows and more individuals are taken prisoner, tortured, or executed, it becomes more difficult to resort to the legal path.
In addition, it is often difficult to “reconcile the safeguarding of human rights with conflict resolution.” Many peacekeeping and conflict-prevention initiatives have failed both to protect human rights and help the parties towards conflict resolution. In part this is due to the fact that while wars between states have diminished, wars within states have escalated. Many internal conflicts involve a surge in organized violence. Genocide, crimes against humanity, and aggression against civilians have become a central part of warfare in these “internal” conflicts. Such violence often arises out of identity issues – in-group/out-group dynamics – and attempts of one ethnic or religious group to gain and maintain political control and to exclude other groups. Such conflicts are often not fought over principles or ideas, but rather focus on differences. The “outsiders” are dehumanized, making human rights violations such as severe discrimination or ethnic cleansing all the more psychologically feasible. Thus, attacks on human rights are often at the very heart of these internal conflicts.
In response, public authorities must regain control of organized violence. This means a re-establishment of the rule of law and a rebuilding of trust in public authorities. In addition, more inclusive, democratic values are needed to defuse exclusivist ideals. In the face of such violations, leaders must champion international legal norms and human rights. These human rights norms are central to the maintenance of civil society, and necessary for grounding attitudes of tolerance and mutual respect within communities.
Serious difficulties arise, however, when those in power are responsible for human rights violations. In this case, outside intervention is necessary to stop the abuse.