The Bangladesh ICT - Public Statement by the Defence

The International Crimes Tribunal Bangladesh: International Standards and Fundamental Freedoms

Public Statement by the Defence Team

On 3 October 2011 Allama Delwar Hossain Sayedee became the first person ever to be formally charged for crimes under the International Crimes Tribunal Act 1973 as amended 2009 after it was first established nearly forty years ago. In the time passed, the Act has been distinctly removed from its original intention to try members of the Pakistani Army. Sayedee (and indeed the remaining accused) is a Bangladeshi civilian, just as he was in 1971 during the Liberation War.

The charges against Sayedee are alleged to have been committed in the area now known as Pirojpur District and are based upon Sayedee’s alleged leadership of Razakar Bahini. There are in total twenty counts brought against Sayedee; three of which are alleged acts of genocide and the remaining seventeen counts are alleged crimes against humanity ranging between murder, persecution, torture, rape and abduction.

Despite a number of challenges made by the Defence with regards the lack of definitions or elements of crimes within the Act itself, the Tribunal proceeded to frame charges against Sayedee. It held that the crimes enumerated within the Act were part of customary international law and therefore are clear and unambiguous. Notably however, the Tribunal failed to explicitly state the exact position of customary international law in 1971 on:
a) Definition and context of crimes against humanity and within that the prescribed elements namely: murder, extermination, enslavement, deportation, imprisonment, abduction, confinement, torture, rape or other inhumane acts committed against any civilian population or persecutions on political, racial, ethnic or religious grounds;
b) The requisite knowledge to convict for crimes against humanity;
c) The elements of the different modes of liability charged under section 3 (g) and (h) of the Act.

The definition of crimes against humanity is a three-fold problem when considering the fact that the Nuremberg Charter, on which the Act is based, was drafted in 1945, a clear 28 years before the International Crimes Act 1973 was drafted and a further 66 years before the Act is being used to try individuals. Furthermore, between the Nuremberg trials in 1945 and the establishment of the International Criminal Tribunal for the former Yugoslavia in 1993, there were no examples of a legal institution trying crimes against humanity. As a result there has been extensive debate as to what the exact definition of crimes against humanity was in customary international law in 1971.

In order to deal with this difficulty the Extraordinary Chambers in the Courts of Cambodia (ECCC), which is also a current tribunal with jurisdiction over crimes committed in 1975-1979, has taken a declaratory approach and explicitly laid out what it perceives to be the position of customary international law in the 1970’s and provided for specific elements of crimes in defining crimes against humanity. Article 5 of the Law on ECCC defines crimes against humanity as: “any acts committed as part of a widespread or systematic attack directed against any civilian population, on national, political, ethnical, racial or religious grounds, such as: murder; extermination; enslavement; deportation; imprisonment; torture; rape; persecutions on political, racial, and religious grounds; and other inhumane acts”. In contrast to this the ICTBD has only managed to include the provision that it “may take into account normative developments should it feel so required in the interests of justice”. This has a significant impact on the preparation of the defence case and the legal framework of the upcoming trial and subsequent judgment. It would effectively involve moving the goalposts mid-proceedings.

There are further problems with the indictment as it stands. This includes the failure to separate counts with regards to a single event. For example, one count contains allegations of abduction, confinement and rape as a single charge. In other counts, there is often no specific prescribed offence under crimes against humanity so that a general allegation of crime against humanity is put forward. Indeed lack of specificity is a running theme within the indictment. Out of 20 counts, 9 have no specific date provided for. Indeed four of the counts do not even attempt to provide a limited range of dates, only stating that the alleged offence occurred “during the time of Liberation War in 1971”.

Following the charges being read out, Sayedee was requested by the Tribunal to enter an immediate plea without being permitted to take legal advice before doing so. Sayedee pleaded not guilty to all twenty counts and took the opportunity to declare his innocence. He clarified that he had no involvement with the Razakar, Al-Badr, Al- Shams, or the Pakistani Army and that such accusations were fabricated.

The trial of Sayedee is to commence on 30 October 2011 and will be the first trial heard before the ICTBD. Despite the year-long investigation into the case against Sayedee, the defence are now expected to complete the arduous task of conducting its own investigation and prepare for its entire case in support of Sayedee within a time frame of three weeks. The defence are to disclose its entire case by 30 October 2011, notwithstanding the fact that the Prosecution have yet to open their case nor the fact that the alleged activities were committed over forty years ago.

One of the main concerns raised recently is that a number of personnel closely associated with the Tribunal played a role in the Peoples’ Inquiry Commission of the early 1990s. This Commission conducted inquiries into crimes committed during the 1971 War of Liberation and identified those deemed responsible. The issue is that irrespective of the role played in the Commission, it would now be quite inappropriate to hold judicial office in any proceedings over the same subject matter.

The Bangladesh State Minister for Law, Qamrul Islam, recently declared: “The ICT trial process will be more neutral and transparent than that of other war crimes trials so far held elsewhere in the world. It'll be a exemplary for the world community.” This indeed is quite a challenging statement. Previously, the Government line was that trials would be fairer than Nuremburg and Tokyo as there would be the right of appeal. This new bold line adopted by the Government indicates that trials at the Bangladesh ICT will outshine the International Criminal Court, the international ad hoc tribunals and the various hybrid tribunals around the world. One hopes that the Tribunal can now maintain the very high standards set by Minister Qamrul Islam and that the legal framework and procedures, including repealing the controversial First Constitutional Amendment, will now be amended in line with maintaining fair trials and ensuring the rights of the accused are upheld in accordance with international standards.

Despite the very bold statements made by members of the Government that trials will be conducted under the highest standards of fairness and transparency, the defence is forced to operate in an atmosphere of hostility and intimidation. The lead counsel for the detained Jamaat-e-Islami leaders, Barrister Abdur Razzaq, a member of the Bar of England and Wales, was recently implicated in the 19 September 2011 political demonstrations. The police reports implicated him as having participated in the violent demonstrations on the streets of Dhaka. This is notwithstanding the fact that he was in my presence in Europe attending high-level meetings with representatives of various United Nations and European Union institutions. Should Barrister Razzaq be arrested upon his return to Bangladesh this would send a clear message to the international community that a leading member of the legal profession has been arbitrarily detained for allegations that have no substance and is merely a politically motivated attempt to interfere with the war crimes trials. This allegation is further substantiated by the fact that a key defence witness, ironically a former member of the Liberation Forces, has recently been arrested, a journalist working for an opposition news station conducting investigations on behalf of the defence and a further five defence witnesses now also face criminal allegations. This would seem to serve no purpose other than as a direct warning to anyone intending to give evidence on behalf Sayedee or any person brought before the Tribunal.

This week the ICT Judges and Registrar travelled to The Hague to meet professionals and observe the practices of the International Criminal Court, the Special Tribunal for Lebanon and the International Criminal Tribunal for the Former Yugoslavia. It is noted with concern that although the delegation met with representatives from the Office of the Prosecutor and Chambers (Judges section of the Tribunals) they failed to request any meetings with representatives from the Defence Office at the International Criminal Court. Although it has been confirmed that this was not judicial training, something the defence have consistently called for, having the opportunity to observe proceedings before such institutions will undoubtedly cause the judges to question their own rules. We certainly hope that any future educational visits also include judicial and prosecutorial training.

A number of statements have emerged this week purporting to show that the US Secretary of State fully supports the Tribunal and praises the war crimes process in Bangladesh. Whilst not wishing to add to the comments attempting to prejudge the position of the US Government, what is clear is that Secretary Clinton has expressed support for the establishment of the Tribunal and the Bangladesh Government’s intention to bring an end to a culture of impunity. If this is the position of the US Government, it is merely reflecting the positive obligations imposed under international law on Bangladesh to bring justice to the victims of crimes that have no statute of limitation. However, what Secretary Clinton has not commented on is whether the US Government is in agreement with the manner in which trials are currently proceeding and whether the laws and procedures meet international standards. One issue that was addressed by Secretary Clinton; however, was the question of freedom of the press. Secretary Clinton quite rightly said that the US Government “...[urges] the Government of Bangladesh to ensure that media outlets are able to exercise freedom of the press and that NGOs have the opportunity to be a vibrant contributor to the future of Bangladesh.”

Secretary Clinton’s comments have particular resonance when one considers that any opposition comment is stamped out and the author of such comment threatened with charges of contempt or sedition. By way of substantiation, the British journalist David Bergman, recently wrote an article in the New Age, a leading Bangladesh daily, entitled “A Crucial Period For The International Crimes Tribunal”. On 3 October 2011, the Tribunal issued a show cause notice against David Bergman, the New Age editor and the publishing company, for contempt. Bergman, and his employers, have been summonsed to attend the Tribunal on 23 October 2011 and show cause for the article. This is a clear attempt to influence independent media reporting and to control any criticism of the Tribunal.

The numerous statements issued recently by members of the Bangladesh Government claiming international approval are misleading. The international community naturally applauds the efforts of the Government, but not a single statement emanating from outside of Bangladesh has been anything but critical of the law and practice of the Tribunal. It is worthy of note to remark that US Ambassador Stephen Rapp, Lord Avebury, International Bar Association, Human Rights Watch, International Center for Transitional Justice and Amnesty International have all called for the legal framework to be amended in accordance with international standards.

There have also been numerous criticisms of my comments on the Tribunal. I have been accused of breaching my professional obligations and of acting in an impartial and biased manner. To this I have responded that the duty of a barrister is to promote and protect fearlessly and by all proper and lawful means the client's best interests and do so without regard to his own interests or to any consequences to himself or to any other person. I have strived, and I will continue to strive, for changes in the law that ensures my client a fair trial and represents full compliance with Bangladesh’s international obligations. To do otherwise would be in breach of my professional duties to my clients. As to the most recent criticism that I have acted with bias towards the Tribunal I would only say that there is nothing in my professional obligations that require me to act impartially. The maker of such comments has unfortunately confused the role of the judges and the role of defence counsel. The judges, as the adjudicators of law and fact, must apply themselves impartially and must act with total independence. My duty is to present my client’s case in his best interests. Of course there is a duty not to mislead the court before whom one appears. However, that does not mean that I have to act impartially and in fact one might think that it is implicit in the role of defence counsel to act partially.

On the question of international or fundamental standards there remains much debate. The Bangladesh Government has repeatedly stated that the trials will meet the highest international standards. As noted earlier, Minister Qamrul Islam has set the bar extremely high. The Minister for Law, Justice and Parliamentary Affairs, Shafique Ahmed, has recently called on the international community to ensure that international standards are met. However, the same criticisms raised by the international community have still not been addressed. The Tribunal's judges have at times stated that the Tribunal is a domestic court and not required to comply with international standards (see http://www.asiacalling.org/en/news/bangladesh/2265-bangladesh-war-crimes-first- charges-filed). However, if the Tribunal is indeed a domestic judicial organ then there is no reason why domestic procedural and evidentiary rules should not apply. There is no justification for the removal of constitutional and fundamental rights. There is no justification for removing the right to bring interlocutory appeals to the High Court.

The mantra adopted by various organs of the Bangladesh Government that appeal against conviction and sentence provides a higher standard than was available before the International Military Tribunals of Nuremberg and Tokyo is simply unacceptable. Interestingly, US President John F. Kennedy said of the Nuremberg trials that “[they] were a reversion to the ancient practice of the savage extermination of a defeated enemy and particularly of its leaders. The precedent set by these trials will continue to plague their authors.” The provision of appealing against conviction and sentence will provide little remedy if the same rights that have been systematically removed are not restored in the appellate proceedings. Rather worryingly in this regard, a Justice of the High Court Division of the Supreme Court, noted in relation to a petition brought against the First Constitutional Amendment that a reasonable distinction could be drawn between the rights afforded to “ordinary citizens and other citizens accused of war crimes.”

The Tribunal Registrar recently told British Journalist David Bergman:
“You know the tribunal has been functioning according to Act of 1973 and the rules framed by the tribunal under the powers conferred by the act which are basically quite compatible with the universally recognized norms and principles, attention to due process of law and highest degree of fairness and I do believe that for that despite concerns raised by many international organizations there should be no disagreement that equal opportunity of both the sides has to be afforded and in ensuring it the tribunal is quite conscious..”
The criticisms aimed at the Tribunal include the following:
1. Those who fought with the Liberation forces, irrespective of their conduct, are immune prosecution;
2. Those charged with crimes under the jurisdiction of the Tribunal are stripped of constitutional rights and fundamental freedoms;
3. Suspect interrogations are conducted without prior disclosure and in the absence of counsel;
4. The crimes under the 1973 Act lack clear definitions and elements of crimes;
5. There is no right to challenge any decision of the Tribunal other than having the same judges review their own decisions;
6. There is no right to challenge the jurisdiction of the Tribunal, the 1973 Act or the appointment of any individual judge;
7. An accused is required to enter a plea immediately upon being arraigned and without the prior assistance of counsel;
8. The defence is afforded 3 weeks to prepare for trial from charge;
9. The defence is required to disclose its entire case before the Prosecution has even opened its case;
10. The defence are denied privileged communication with counsel;
11. The domestic rules of evidence and procedure are explicitly excluded;
12. There is no right to appeal other than against conviction and sentence;
13. Rules of international law have been held not to apply;
14. These are all capital cases.

It is difficult to see what “universally recognized norms and principles” are being referred to here.

Toby M. Cadman

London, 16 October 2011