Tuesday, January 20, 2015

Political crisis 2015 - criminal responsibility and the killings

See also in the 'Political Crisis 2015' series:
Analysis of the deaths (updated to 27 Jan)
Extra Judicial killings (22 Jan)

A previous post provided details of 31 deaths - including fifteen members of the public, and ten  opposition activists - that have taken place in Bangladesh since the political crisis began on 5 January.

This post looks at issues of responsibility and in particular that of criminal responsibility. It may well be the case that it is political action by the government, not law enforcement, that will bring an end to the killings - but it is nonetheless important to appreciate that serious crimes are being committed.

Deaths of Members of the public
Let us first look at the 15 deaths of members of the the public. It is clear that the people who actually set fire to the vehicles killing those inside, and those who threw bricks or bombs so vehicles lost control and the drivers/passengers died are criminally responsible for the deaths. They either caused the deaths, intentionally (in that they intended people to die); or recklessly (in that they were aware of the risks of death through their actions but went ahead nonetheless) or in a gross negligent manner (it was obvious their actions could result in death and they went ahead anyway)

Who did it? Who are these men who set fire to the vehicles etc? Yesterday (Monday, 19 Jan, 2015), after the police removed the barricade from outside the BNP Gulshan office, Khaleda Zia gave a press conference in which she denied any involvement of her party people in the violence. She said:.
‘Awami League is itself involved in these attacks. We are not attacking people with gunpowder or petrol bombs. It is the Awami League who is carrying out these attacks, taking the polie with them ... Awami League has a history that it carries out attacks and kills common people.’ 
However, until evidence to support such allegation emerges, any reasonable person must surely accept that the men most likely to be involved in this are opposition party activists or those acting on their behalf.

One only needs to look at how these blockades/hartals work (whether it is the BNP or the AL organizing them). The opposition calls for a blockade, that is to say to stop vehicles from traveling on the roads; that blockade needs to be enforced through intimidation on the roads or through instilling fear in the public so that they do not take to the roads; and this is achieved by opposition party activists or supporters or their hired hands burning vehicles or forcefully stopping them.

Whilst it is true that BNP leaders have on occasions called for their activists to enforce the picket 'peacefully' - the BNP leaders have rarely condemned the killings of members of the public during this blockade. Moreover, privately (and sometimes on the record) BNP leaders have said to me that violence is an inevitable consequence of the government crackdown, which seems to accept that the violence is caused by their own activists.

(Of course, everything  that is being said now of the BNP activists, could be said of those from the Awami League in the past. But the past is the past - we are now dealing with the current political conflict.)

Assuming that it is opposition activists involved in the violence and deaths of members of the public, should BNP leaders themselves be held criminally responsible for the attacks carried out by their party activists or by those acting on behalf of the party?

I suppose the first question to ask is whether it is likely that the violence could have taken place without BNP leaders giving theirs activists a green light, or even a level of direction? It is possible, of course, that violent enforcement of blockades is so ingrained in Bangladesh politics that activists do not need to be told to use petrol bombs that the BNP did not give any instructions of guidance to their activists? However, if that is the case, then surely it is behooven on those leaders, as soon as they do realise that their party activists are involved in violence, to stop them doing so.

Certainly the BNP has significant questions to answer here. But it should also be said - and the government/police should be mindful of this - that opposition activists and BNP leaders should not be arrested unless the police actually have positive evidence to support any allegation that they are involved in the violence.

Justifications?: There are those who may accept that it is opposition activists involved in the violence but argue that the violence should be seen in light of the repressive government crackdown on the opposition. Whilst this may be an explanation for the violence, this is however no justification. Whatever the extent of this government repression of the opposition parties - and it is clearly extensive (about which I will write in the future) - it does not the justify killing of people, or activities that could result in injury or death.

There may also be those who will argue that the previous killings by the law enforcement agencies under this very government - whether through 'extra-judicial killings' or through 'disappearances' provides some kind of justification for the actions of the opposition pickets. But just as the government killings and disappearances are wrong and criminal (and cannot themselves be justified by the possibility that the victims of the disappearances/extra judicial killings had been involved in criminal activities) neither can the current opposition picket killings.

Terrorism?: What about the government's charges that the BNP is carrying out "terrorism"? Section 6(1)(a) of the amended Anti-terrorism Act 2009 defines terrorist activities in the following way:
"If any person, entity, or foreigner …. for the purposes of threatening the unity, integration, public security or sovereignty of Bangladesh by creating panic amonst the public or a section of the public with a view to compelling the Government or any entity of any person to do an act or preventing them from doing an act,-
(i) kills, causes grievous hut to, confines or kidnaps any person or attempt to do the same;
(ii) conspires, abets or instigates any person to kill, injury seriously, confine or kidnap any person or
(iii) damages or tried to damage the property of any other person, entity or the Republic; or
(iv) conspires or abets or instigates to damage the property of any other person, entity or the Republic; or
(v) uses or keeps in possession any explosive substance, inflammable substance and arms for the purposes of clauses (i), (ii), (iii) or (iv)
Since the purpose of the opposition blockade is to compel the government to change its policies on elections, and the violence is done to enforce the picket, it would seem that those who commit violence during the blockade could come within this section of law.

And if there was actual evidence that BNP leaders 'conspired, abetted or instigated' these picketers to enforce the blockade using violence, arguably these leaders could in principle also be prosecuted for conducting terrorist activities.

Deaths of opposition activists
In the last two weeks, ten opposition activists have been killed - six by law enforcers and four by governing party activists or other unknown parties

In relation to the deaths at the hands of law enforcers, the extent of criminal responsibility depends on whether the law enforcers killed the men (a) in self defense; (b) recklessly or (c) with intention to kill - and it is difficult to say which of these is the case from the news reports.

To the extent that the law enforcers killed the opposition activists recklessly or with intent, they are criminally responsible.

Moreover, there are a couple of deaths of BNP activists which are particularly troubling, where it appears that the activists may well have been murdered extra judicially. Such killings, as with those where responsibility lies with opposition activists, do raise questions about political authorisation, which in this case means that of senior government officials.

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