Thursday, July 30, 2015

Where was Salauddin Quader Chowdhury in 1971?

On Wednesday, the appellate division upheld the sentence of death on Salauddin Quader Chowdhury (SQC), a leader of the opposition Bangladesh Nationalist Party,  in relation to four offenses, and the convictions and sentences of imprisonment in four other cases.

The only amendment made to the Tribunal judgement by the appellate division was an acquittal in one case.

The four offenses for which he was sentenced to death took place on two specific days - the 13th and the 19th April 1971.

The defense argued that SQC was not present in Chittagong on these two particular dates (or indeed throughout the 9 month war). Since the death penalty involves offenses committed on the 13th and 19th April, these are key dates to focus on.

Three defense witnesses in court gave evidence which supported SQC's case that he flew out of Dhaka for Karachi on 29 March 1971, remaining in the city for at least three weeks. If true, it is difficult to see how SQC could have been back in Chittagong after only two weeks.

SQC's defense team wanted to call other witnesses to give evidence in support of the claim that he was in West Pakistan during the war, and in particular during April.

The Tribunal however only allowed the defense to call a total of 5 witnesses to testify for the defense - having allowed the prosecution to call a total of 41 witnesses.

SQC's lawyers obtained affidavit statements from other witnesses - six of which supported his defense concerning his presence in West Pakistan during the war.

Though these statements were lodged with the Tribunal, in its judgment the Tribunal did not refer to any of these statements, only stating that they were not submitted correctly.

The appellate division has not yet published its judgment, so it is not possible to know how the court dealt with this decision on the part of the International Crimes Tribunal to ignore the substance of these highly relevant affidavit statements.

Below is the article published in New Age on 28 October 2013, following his conviction by the Tribunal earlier that month (and before he lodged his appeal before the appellate division) which considers the decision of the Tribunal not to consider these affidavits in its judgment  and raises questions about the appropriateness of Chowdhury's conviction for the offenses on 13th and 19th April - yet alone receiving a death sentence for them.

The article below contains links to both the defense evidence in court and the affidavits lodged with, but whose substance was not considered by the ICT.

Tribunal not consider submitted affidavits supporting SQC’s alibi 
David Bergman

The tribunal that passed the death sentence on opposition leader Salauddin Quader Chowdhury for offences committed during the independence war of Bangladesh did not consider in its judgment the contents of six affidavits which supported his claim that he was not in Chittagong at the time the offences were committed.

The affidavits supported the accused’s alibi defence that on 29 March 1971 he flew out of Dhaka to Karachi where he stayed for three weeks, then travelling on to Lahore where he studied, until August of that year, for a degree at Punjab University.

Chowdhury’s lawyers had submitted the evidence in the form of written statements as the tribunal had earlier restricted to five the number of witnesses which the defence could bring. In the end, due to time restrictions imposed by the tribunal, Chowdhury could only bring four witnesses. 
The affidavits were from people whose names were contained on a long list of 1153 people which the defence had initially provided to the tribunal as possible witnesses.

The prosecution had no limits placed on the number of people it could bring to testify in court – with 41 people giving evidence.

In its final judgment, the tribunal stated ‘some documents’ had been submitted at ‘the fag end of [the] defence argument’ but said that this was done so ‘in violation of the provision’ of the law, and that the lawyers had ‘intentionally refrained from proving those documents by recalling defence witnesses.’

It then went onto state that the ‘defence has miserably failed to prove its plea by documentary evidence that the accused stayed in West Pakistan during [the] whole period of the Liberation War of Bangladesh.’

The judgment however did not mention that the court had earlier allowed the defence lawyer ‘to submit’ the affidavits as evidence to the tribunal.

‘It is an admitted fact that there is no provision to file additional documents on behalf of the defence during trial,’ the court’s 21 July 2013 order stated, referring to these six affidavits and 49 other documents submitted by the defense.

‘Despite of this fact, for the end of justice we are inclined to give permission to the defence to submit additional documents’ and should ‘be kept with the documents filed earlier by the defence.’ The tribunal did not suggest in its order that it considered these documents had no probative value.

No appeal has yet been lodged by the defence or prosecution lawyers. 30 October is the filing deadline.

On 1 October 2013, Chowdhury was convicted for 9 offences concerned with crimes committed during the 1971 war of Independence.

Six of these nine offences – including all four of the offences which Chowdhury was sentenced to death – took place on just two days, the 13th and 17th April 1971 – within one month of the beginning of the independence war.

The thee other offences took place on 14 April, 5 July, and in the third week of July 1971.

Apart from the Salauddin Quader Chowdhury himself, the defence lawyers presented three witnesses at the trial who supported the accused’s alibi defence.

Qayum Reza Chowdhury, told the court that he dropped the accused, his cousin, at Tejgaon airport on 29 March 1971 to take a flight to Karachi, and that, just over a week later on 8 April, went himself to the city, along with two friends Salman Rahman and Nizamuddin.

Nizamuddin, a friend, confirmed that he had travelled with Qayum and Salman Rahman on 8 or 9 April 1971 to Karachi, and that after a few days, he had met the accused at Salman Rahman’s house.

Abdul Momen Chowdhury, who at that time was a diplomat based in Pakistan, said that in the second or third week of April 1971 he went to Karachi and met the accused for the first time at the office of an old school friend Asiqur Rahman.

In its judgment, the tribunal dismissed this evidence citing 14 eye-witnesses who had confirmed that the accused was present at the scene of the alleged offences.

The judgment also referred to evidence that showed Chowdhury was present in Chittagong in September 1971 - including a newspaper article and a special branch report which mentioned that the accused was injured in an attack on his car during that month, and the testimony of doctor who said that he had treated him on that occasion.

However, in coming to this conclusion, the tribunal did not consider the documentary evidence which the tribunal had previously accepted from the defence.

This included an affidavit from Muhammad Osman Siddique, a former United States ambassador, who had known Chowdhury since college days, which stated that he was on the same flight as the accused when he flew to Karachi.

In another statement, Karachi-based Muneeb Arjmand Khan, a friend of the accused since school days, stated that he ‘received’ Chowdhury from the airport and took him to ‘Mr Yusuf Haroon’s residence, known as Seafield.’ 
He also says that he was also amongst those who took Chowdhury to Karachi airport when he moved to Lahore ‘after about 3 weeks’ to go to Punjab university.

Amber Haroon Siddiqui also provided an affidavit which stated that on arrival in Karachi, Chowdhury lived at her family house, (known as ‘Seafield’) for ‘about three weeks.’

‘We used to have discussions at the dinner table where [Salauddin Quader Chowdhury] would join me, my sisters and my parents,’ it stated.

A further detailed statement was given by Ishaq Khan Khakwani, a former member of the National Assembly of Pakistan.

‘[Salauddin Quader Chowhdury] arrived at Karachi a few days after … 26th March 1971,’ the affidavit stated.

‘Salauddin was picked up from the airport by our mutual friend Muneeb Khan and I spoke to both of them once they reached Mr Yusuf Haroon’s [father or Amber] residence called Seafield House.’

It goes onto state that when Chowdhury came to Lahore, ‘with great difficulty we got him admitted in the Punjab university’ and that the accused stayed within him ‘in our family house … where he stayed with me throughout till we left for London in October 1971.’

He mentioned the names of five people who would congregate with the accused ‘almost daily’ in that period, and stated that ‘Shamin Hasnain, who is now a justice of the High Court in Bangladesh’ would sometimes join them.

Ishaq also mentioned a trip taken on May 20 1971 when he and Chowhdury drove from Lahore to Malton to attend ‘the engagement ceremony of Dr Nasir Khakwani,’ a classmate of the accused from schooldays.

The statement also states how after their exams in August 1971, he and Chowdhury went along with five other named people – including that of Salman F Rahman – to the hill stations in Muree.

Amongst the documents given to the tribunal along with the affidavits was a letter written by the sitting High Court judge Shamim Hosnain to the country’s current chief justice which stated ‘[the accused] was a classmate of mine at Punjab University at Lahore. It is true that Salauddin Quader Chowdhury was at the Punjab University Campus between the first week of May 1971 till August of the same year.’

A letter signed by Dr Umbreen Javaid, the Chairperson of the Department of Political Science at the University of Punjab, dated 24 January 1971, certified that Salauddin Quader Chowdhury was a student of political science ‘who secured 233/500 for the academic session of 1970-71’ having appeared in the ‘final examination in August 1971.

Two other affidavits - that of Mohamedmian Soomro, and Riaz Ahmed Noon - also supported different elements of the alibi defense. 
Zead-Al Malum, the prosecutor in Chowdhury’s case told New Age that, it was not relevant that the tribunal had earlier allowed the defence to submit the documents; what was at issue was whether the documents had ‘probative value’ or not.

‘Documents only claim probative value if they have been exhibited by the witnesses of the respected parties,’ and these documents were not, he stated.

He added that, ‘At time of pronouncement of judgment the tribunal legally passed its opinion that the documents additionally submitted by the defence was in violation of the law,’ in that they had not been included in a list of documents submitted at the beginning of the trial.

Sunday, June 14, 2015

Geofrey Robertson QC and ICT contempt proceedings

Geofrey Robertson QC is one of Britain's most able and renown barristers, who has written widely on war crimes and who has sat as an international appellate judge at the UN sponsored Special Court for Sierra Leone.

One could not seek a more eminent, independent - or indeed appropriate - person to assess the International Crimes Tribunal, and earlier this year he was asked by one of the lawyers acting for the Jamaat to 'provide an independent opinion on their fairness and on the Tribunal’s proceedings and conduct,' and this was published in 2015

To read about the issue relating to the independence of the report
To read about what the report says about prosecution pakistani military officers

I raise this now, since the Robertson report (which has got almost no media attention in Bangladesh) contains a short section looking at the contempt proceedings against myself in relation to writings on this blog - and since now the Tribunal has given its judgement on the subsequent contempt proceedings against 23 people who signed a statement critical of that particular judgment, it is now possible to share what Robertson said about those contempt proceedings.

However, I will share an edited version for fear that my re-publication of the full version could be the cause of further contempt charges - since it uses choice language about the tribunal that will not be considered appropriate under the current ICT contempt jurisprudence.

So those who want to see, exactly what Robertson has to say about the contempt proceedings, go to p.65/66 of the report. Here is the edited version.

"…. and by 2014 the judges have become even more XXXX and XXX of nationalist assumptions. This is demonstrated by their contempt proceedings against David Bergman, an experienced journalist whose work (notably an award-winning Channel 4 film “War Crimes File”) has helped to draw international attention to the need for justice in respect of the 1971 atrocities, and whose blog has provided reliable information about the course of the trials (see fn 126). He was indicted, simply for questioning whether as many as three million civilians were killed in 1971 (see fn127) 
This figure has become a government shibboleth, but is probably exaggerated, like most estimates of war deaths made in the absence of sound demographic evidence. The original source of the 3 million figure appears to have been a report in Pravda, which at the time was providing propaganda support for the Indian government (which has put the death toll at about one million). Most, if not all, independent studies challenge the 3 million estimate, (see fn128) although the likelihood is that there were at least a million casualties, not all of them were victims of the army and its associates. But even to question XXX that three million died was considered to be a crime. “Why did he create this controversy?” “Why did he write about this issue at this time?” were questions put to Bergman’s counsel by the judges who, when they convicted him in December 2014, showed themselves XXXX of the fundamental rule of free speech which permits questioning of any historical “fact” if done without intent to stir up racial hatred. 
Merely for questioning the ‘official’ death toll of three million, the Tribunal judges ruled that Bergman had “hurt the feelings of the nation’ and XXXX accused him of having “neither good faith nor an issue of public interest”. (See fn 129) This finding, in respect of a journalist of good repute writing on an obvious matter of historic interest, whose calculations are supported by most independent studies, does XXX about the XXX of these judges to make accurate findings of fact when “national honour” is perceived to be at stake. The presiding judge, Obeidal Hassan, went so far as to claim that Bergman “has a perverse mindset about the 1971 war. Let the government carefully scan the matter”. This is language which betrays the court’s XXXXX XXXX. XXXXXXX judiciary bound, under its common law, to suffer the scrutiny of honest critics. (see fn 130) It is fair to say that Bergman was only fined the equivalent of £41, but the case reveals a XXXXX on the part of a Tribunal that XXXX criticism.

Thursday, June 11, 2015

Initial thoughts on the valiant 49 signatories

Shireen Huq, Rehnuma Ahmed, Zafrullah Chowdhury,
Farida Akhter, and Anusheh Anadil outside the ICT
The Tribunal has now given its judgement on the 23 people who signed a statement critical of a previous judgment of the tribunal which had held that writings on this blog were in contempt of court, but refused to seek an unconditional apology. 22 were cautioned but exonerated. Zafrullah Chowdhury was convicted and sentenced to 1 hour in the custody of the court, with a fine of Tk 5,000

To read about the previous judgement 
against this blog, click here

To read about proceedings involving the signatories to the statement, click here

In due course I will be writing quite a bit about this recent judgment. It raises a lot of interesting issues, (particularly when read along with the original judgement upon which the statement was commenting on), about how contempt law involving an alleged 'scandalization of the court' is interpreted by the Bangladesh courts and particularly the International Crimes Tribunal.

Whilst more and more jurisdictions either no longer have that kind of contempt law (for example, there is no such thing as contempt by scandalization in English law), the Bangladesh courts have an increasingly hardline and broad interpretation.

Here, I just want to make the point about how - unlike in Bangladesh -  journalists in India are able to criticize court judgements without apparent fear of recourse to contempt applications by the courts, or by over enthusiastic lawyers.

A fine example of this is in a recent article on the political website the - concerning the alleged errors contained in a decision by the Karanataka High Court which acquitted the former Tamil Nadu Chief Minister J Jayalalithaa in a corruption case.

The article refers to 'glaring errors', 'jurists spitting fire' because of the poor quality of the judgement, the 'judiciary giving legal sanction to corruption', the High Court setting  'a bad precedent, one that encourages bribery', and a judgement that 'will bring down the image of the Indian judiciary in the world'

It is simply unimaginable that such an article could be published in Bangladesh - whether it be about a judgement of the ICT, or one of the High court - without ICT prosecutors or other lawyers (who see themselves as protecters of the dignity of the judiciary) immediately pressing for contempt charges being brought, with thunder and fury  It is also difficult to see how a Bangladesh court would not proceed against the writer and publisher of such an article unless they immediately made an unconditional apology. In fact, it is doubtful that even an unconditional apology could exonerate person writing or publishing such an article

The title of the article itself would in all likelihood be sufficient for a contempt case in Bangladesh: 'More than bad maths: Four big errors that let jayalalithaa off the hook."

The article then goes onto state:
[M]ore serious errors of duplication have been found in Judge CR Kumaraswamy’s verdict. It now appears that the High Court has, erroneously, added loan amounts twice to the income of the defendants. This means that the amount calculated by the judge as ‘explained income’ — the basis on which the court has exonerated Jayalalithaa and others — is a highly inflated figure. ... 
In fact, the High Court appears to have made some more glaring errors.

Jurists are spitting fire at the law used by Judge Kumaraswamy on Page 914 of his order acquitting Jayalalithaa. ...

“Is the judiciary giving legal sanction to corruption?” asked a retired High Court judge who did not wish to be named …

Legal eagles say that this ruling by the High Court judge could set a bad precedent, one that encourages bribery ...

The legal fraternity points out other errors in the judgement. ... 
“This judgment will bring down the image of the Indian judiciary in the world …" he said.
[T]he legal fraternity is certainly chafing at what has taken place
The question of course is this:  if such comments do not bring the Indian judiciary into disrepute do not dishonor the Indian High court or justice system, do not demean 'the majesty' of the Indian courts, do not 'debase' the authority of the Indian High court, do not 'belittle the authority and institutional dignity' of the Indian justice system, do not 'severely shake the confidence of general people' in the authority of the Indian courts, do not create a 'hostile impression in the mind of public on the authority and competence of the court', and are therefore not subject to contempt proceedings in India - why then are far, far, far less serious criticisms of judgements given by Bangladesh courts deemed to do so, and be in contempt? 

Sunday, April 12, 2015

Telling the truth about the tribunal process

There are some very necessary conversations to be had about the the International Crimes Tribunal in Bangladesh. There are important things to be said both by those who, on the one hand  unconditionally support the tribunal, and those who, on the other hand, support the principle of accountability for 1971 crimes and the need for tribunal, but who are concerned about aspects of the particular process.

Unfortunately in Bangladesh, few who fall into the second category feel able to speak publicly about their position, and one wonders whether now any independent newspaper would publish what they had to say. There are two main reasons for this: First, a real fear that a word 'wrong' could result in proceedings for contempt of court before the International Crimes Tribunal;  and secondly having to suffer the resulting abuse and ignorant criticism on social networks and newspapers suggesting that, however thoughtful and accurate one's analysis, you are a 'supporter of Jammat', 'paid by Jammat', 'a supporter of war criminals', and even a 'collaborator' etc etc

As a result the only part of the conversation about the Tribunal that is heard in Bangladesh is from those who unconditionally support the tribunal. It is a great pity that it is not possible to have a healthy and informed debate on these issues.

Whilst there is, from this camp, some very thoughtful and moving writing about the tribunal, there are, also from this camp, those who make completely inaccurate statements about the tribunal which are allowed to remain unchallenged. The Daily Star today carried an op-ed titled, 'The debate over war crimes trials: is there any merit?', claiming that no criticism of the tribunals is merited. It is written by the Convenor of the Canadian Committee for Human Rights and Democracy in Bangladesh, so one would hope at least he would know what he was talking about. However, that is far from the case.

His argument in support of the tribunal is set out out in two key paragraphs near the end of his article and are set out below.
In my limited research, I have not come across any war crimes tribunal whose proceedings are so transparent and where the defendants are given VIP treatment. Also in accordance with international standards, trials are open to all. At the same time, the accused are given adequate time and facilities to prepare their cases. Prosecutors must furnish them a list of witnesses along with the copies of recorded statements and documents upon which they intend to rely. Defendants also have an unfettered right to call witnesses and to cross-examine prosecution witnesses. All of this is in keeping with the International Covenant on Civil and Political Rights. 
The US ambassador-at-large for war crimes Stephen Rapp, who visited Bangladesh a number of times over the past years to monitor the trial process, has emphatically lauded all attributes of the trial process in his last visit to Dhaka in August. In his words, “the best way in the world to find the truth is the judicial process where the evidence is presented, where witnesses are cross-examined, where both sides have an opportunity to be heard and that is what is being done here [Bangladesh]. It is the process that the American government strongly supports,” he affirmed.
Perhaps the only correct statement are his first three words, 'in my limited research'. His research was certainly very limited! There are certainly positive things that can be said about the tribunal - but what the article sets out in these two paragraphs is mostly inaccurate.

Let me go through each of the statements in the two paragraphs in turn.

1. "I have not come across any war crimes tribunal whose proceedings are so transparent" 

These are the ways in which the tribunal in Bangladesh are not as transparent as most other international crimes tribunals. (a) there is no transcript of proceedings; (b) applications made by prosecutors and lawyers for the accused are not publicly available; (c) Tribunal orders given from August 2010 until September 2013 (for Tribunal 1) and June 2013 (for Tribunal 2) are not publicly available; (d) it is difficult (though not impossible) for any person who is not a journalist, lawyer or a party to the tribunal to gain entry to the proceedings; (e) it is not filmed for internet viewing. For these reasons, it cannot be said that the tribunal is a particularly transparent process.

2. "….. and where the defendants are given VIP treatment." 

I think one can be assured that the facilities of the jails in the Hague, for example are better than those in Bangladesh - even if in Bangladesh they are called VIP.

3. "Also in accordance with international standards, trials are open to all." 

Technically the trials are open to all, but in practice they are difficult to access if you are an ordinary member of the public who just wanted to watch the proceedings. You need to get a pass, and to get a pass you need to get permission from the registrar, but the registrar is inside the tribunal building, and it is not easy to get access to the registrar to get the permission. 

4.  "At the same time, the accused are given adequate time and facilities to prepare their cases." 

Clearly, this depends on what is considered to be 'adequate time' to prepare their cases. The law states that a trial can start as little as three weeks after the prosecutor provides the 'list of witnesses intended to be produced along with the recorded statement of such witnesses … and copies of documents which the prosecution intends to rely upon in support of such charges.' (section 9(3)) Some of the trials have taken place just over three weeks after the lawyer has received the documents, and in other cases they have been given a few more months. 

5. "Prosecutors must furnish them a list of witnesses along with the copies of recorded statements and documents upon which they intend to rely." 

This is correct - but it is the minimum you would expect the prosecutors to provide. It perhaps should be noted that the law does not though require prosecutors to provide any exculpatory evidence that they have found, which is required in the international tribunals and is a requirement common in developed legal systems

6. "Defendants also have an unfettered right to call witnesses … "

The defendants do not have an unfettered right to call witnesses. The Tribunal has limited the number of witnesses whom the accused is allowed to testify on his behalf. The Tribunal's decision about the numbers of witnesses is generally made right after the prosecution has finished calling its evidence and is made without knowing the nature of the evidence that other witnesses, that the defense have sought to call, would have given. As a result: 
- in the trial of Salauddin Quader Chowdhury, the prosecution brought 41 witnesses to the tribunal to prove 23 offences, but the defence was restricted to only calling 5 witnesses.
- in the case of Abdul Alim, the prosecution was allowed 35 witnesses, but the defence was restricted to 3 witnesses to disprove 17 offences.
- 4 witnesses have been permitted in Motiur Rahman Nizami’s defence relating to 16 charges;
- 5 witnesses in the trial of Kamaruzzaman involving 7 offenses;
- and 6 in the case of Abdul Quader Molla in defence of 6 offenses.
- only in the cases of Delwar Hossain Sayedee (the first case brought to trial) and Golam Azam were the number of defence witnesses allowed to be in double figures – 20 and 12 respectively.
To read about the issue of the lack of witnesses, click here

(It should be noted that the defense have in some cases initially sought to call a totally unreasonable numbers of witnesses to the tribunal)

6. "…. and to cross-examine prosecution witnesses." 

It is not correct to say that there is an 'unfettered right … to cross examine witnesses'. The appellate division has ruled that the accused cannot cross examine a witness on any previous statements that that witness had previously given. This includes statements that the witnesses are supposed to have given to the Tribunal investigation officer - which is the basis for the whole trial proceeding. This is a rule that does not apply in normal Bangladesh law nor do I know of any other jurisdiction where it applies. This is  significant as it means that the defense lawyers cannot point to the contractions between what witnesses stated in court and what they had earlier stated to either the investigation officer or in interviews to other people. To read how this was significant in the Molla case, see here

7. "The US ambassador-at-large for war crimes Stephen Rapp, who visited Bangladesh a number of times over the past years to monitor the trial process, has emphatically lauded all attributes of the trial process in his last visit to Dhaka in August. …."

This is also not true. This is what he said at the press conference he gave, and where a transcript is available:
What I have noted before is that there are aspects as to the rights of the defense that are not observed in a way that is consistent with international law. The defense has had situations where they have not been able to summon witnesses on their own, and under the international covenant it is said the defense shall have the same right to summon witnesses as the prosecution. And when it comes to cross-examination, being able to cross-examine witnesses based on prior inconsistent statements has been restricted. When it comes to questions of the substantive law, I was very hopeful that it be clear that crimes against humanity would be defined as they are internationally, as being part of a widespread or systematic attack against a civilian population. Such attacks obviously happened here.
But it should be clear that the proof must be provided. And I think there were efforts by the prosecution to put on the proof that was there. Later on a decision was made that you do not to need do it—that you do not need to follow these international standards. You can just say that a crime against humanity is any attack against a civilian. Well that is not an international crime. That is an ordinary murder.

So there are places where I have been disappointed, frankly, by the process. But it is not done yet and I am hopeful. I do not want to be someone that just criticizes and points to errors, because in every system there are challenges. But here in this one where you start with a statute that does not contain the modern international criminal law and when you have a constitutional provision that say none of the rights that apply under your constitution apply to this court, there is a lot of room for development. There are positive developments, positive aspects, and there are some that are less than positive.

So as we would say in our country, where we have juries: The jury is still out. We are still evaluating how this is going and are hoping that as this process moves forward that it will meet the high goals and aspirations that all of us have for it.
As I say, there are aspects about it which I am happy, others that I am not happy. Okay?
In addition, subsequent to this Rapp gave a phone interview to a number of journalists, which can be read here, which also indicates his concerns.

Saturday, April 11, 2015

Why do people support the tribunal despite criticisms?

Why is it that so few liberals, progressives and human rights activists in Bangladesh are willing to accept the criticisms articulated by many independent and well respected observers about the International Crimes Tribunal? Why have neither of the country's two main independent human rights organisations, Ain-o-Salish Kendra or Odhikar, given any statement remarking on concerns about the tribunal?. With so many people clapping for joy at the  execution of Md Kamaruzzman - and just hours before the publication of what are very likely to be jubilant headlines in tomorrow's newspapers here in Bangladesh - I am pasting part of a short feature I wrote late last year for Al Jazeera looking at this issue.

(To see statements from human rights organizations and international bodies calling to a halt to the execution, see here)
Bangladesh war trials: Justice or politics?Many contend the war crime trials hold leaders accountable for crimes during the 1971 war, others argue it is revenge.
….. Jamaat-e-Islami, now a key member of the opposition alliance against the Awami League government, has argued that the trials represent a political vendetta against the party.

However, polls conducted in 2013 showed that the legal process is supported by an overwhelming majority of the country with 86 percent of those polled stating they wanted trials to proceed. 
'Meting out justice' 
Some contend that the trials should be viewed as holding leaders answerable for crimes for which they had previously escaped accountability and not an act of retribution.
In a recent article, Mahfuz Anam, the editor of the country's leading English language newspaper The Daily Star, stated, "It is not revenge. It is not retribution. It is not settling of accounts. And politics, it is definitely not. It is meting out justice."
"It is holding political leaders accountable for their action especially if they commit crimes against humanity. It is fulfilling an inner urge for justice and fair play. In the final analysis it is establishing the supremacy of law and humanitarian values that we have learnt to hold dear in our hearts."
The perspective, however, sits in stark contrast with the views of international human rights organisations which have been uniformly critical of the process, though still supporting the need to hold trials.
The International Commission of Jurists has stated that the tribunal does "not adhere to international standards of a fair trial and due process" and that there are "serious procedure flaws at all stages".
And Human Rights Watch has also said that that the conviction of Golam Azam, the head of the Jamaat in 1971, was based on "flawed proceedings".
The International Centre for Transitional Justice also called for the current judicial proceedings to be "suspended" earlier this year pointing to issues of "fundamental unfairness".

Lack of criticism 
Although Anam's article refers to unwarranted "incidents" at the tribunal and the possibility of "some procedural flaws", the issues raised by the international human rights lobby continued to be ignored.
He is not alone in this lack of interest in fair trial criticisms.
Neither of the country's two main independent human rights organisations, Ain-o-Salish Kendra or Odhikar, have given any statement remarking on any concerns.
And the autonomous National Human Rights Commission, far from voicing any dissent, has been highly supportive of the trial process.
So, while some commentators have suggested that the trial process is dividing the country, the most notable chasm stands between supporters of the tribunal, which include the country's human rights community and other members of wider civil society, and international human rights organisations.
Criticisms of the trials have been largely ignored in Bangladesh, with many believing that the trials are fair, preferring to accept the tribunal's view that the law and process have ensured that the "fundamental and key elements of [a] fair trial" exist.
Iftekaruzzaman, the Executive Director of Transparency International points out that it is in the nature of these kinds of highly charged trials dealing with international crimes that there is disagreement about issues of due process - and so the opinions of international organisations should be put in that context.
"There is certainly questions about whether or not the international human rights organisations are being sufficiently objective or not," Iftekaruzzaman told Al Jazeera.
"For example in relation to the death penalty, people ask why is it that the only time these organisations make statements against the death penalty involves those convicted of crimes against humanity, and not on any other cases."
There are also those who argue that the international organisations are judging these particular trials from too high a standard.
"When the criminal justice process in Bangladesh is riddled with corruption, torture and politicisation, and there is a general lack of due process, people wonder why there should there be any reason for concern about these particular trials," Dr Shahnaz Huda, chairman of the law department at Dhaka University told Al Jazeera.
Syeed Ahmed, a blogger on the war crimes trials, agrees. "People don't think that the alleged war criminals are being treated any worse than common criminals. So, unless the whole legal system is upgraded, people are unwilling to give special treatment for the alleged war criminals."

Manufactured outcry 
There is also the view that the the fair trial criticisms are really just a cover for those who are really only interested in helping the accused escape punishment.
The sentiment has merged with scepticism about the integrity of the foreign human rights organisations themselves.
"Loud voices of human rights agencies regarding fairness of the war crimes trials has failed to create traction here because they have not made the same kind of arguments in relation to other trials in Bangladesh." Ahmed told Al Jazeera.
For some, the issue of fair trials is simply not significant, since in the view of many, these men are known to be guilty of crimes in 1971, and who have managed till now to use their political influence to escape justice, and the sooner they are punished the better.
"People in Bangladesh 'know' that these men are guilty, so they do not see any reason to go through this process to try to find out whether the men are guilty of not," Huda told Al Jazeera.
"Their guilt is so accepted by everyone, that there is no need for due process."
This view might help explain why the same polls that suggested four-fifths of the country supported the tribunals, also showed a majority of people, 63 percent, thought that the trials were "unfair" or "very unfair".
Ahmed also thinks that this apparently conflicting positions about the war crimes trials reflect people's recognition that there are no better options.
"The fact that the Awami League is the only party willing and able to conduct this war crimes trial [means that people are] settling for whatever this government is offering. Four decades of rehabilitation and amnesty of war criminals have made people impatient, rejecting questionable concerns about fair trials," he added.
While fair trial advocates argue that due process concerns should trump all these arguments, there are not many in Bangladesh who are willing to accept that their assessments should have any influence on the process itself.

Statements seeking stay on Kamaruzzaman execution

With Jamaat leader Kamaruzzman about to face the death penalty probably tonight, human rights organizations and other international bodies outside Bangladesh have called on the government to stay the execution - though no similar organizations inside the country have as far as I known done so.*

(See also: Why do people support the tribunal despite criticisms?)

Here are the main statements that have been published:

"The UN human rights experts have on several occasions expressed alarm regarding serious violations of fair trial and due process guarantees in the judicial proceedings before the Tribunal that were reported to them"

United Nations, High Commissioner for Human Rights: Halt execution

"The trial was reportedly rife with irregularities and did not meet international fair trial standards."

Human Rights Watch: Suspend death sentence of sentence of war crimes accused

"At his trial, the court arbitrarily limited the ability of the defense to submit evidence, including witnesses and documents. The court denied the defense the opportunity to challenge the credibility of prosecution witnesses by rejecting witnesses’ earlier statements that were inconsistent with their trial testimony."

"The European Union reiterates its opposition to the use of capital punishment in all cases and under all circumstances. The EU has consistently called for its universal abolition. Capital punishment is not a deterrent against crime and makes miscarriages of justice irreversible. The European Union calls on Bangladeshi authorities to commute all death sentences and to introduce a moratorium on executions as a first step towards definitive abolition of capital punishment.

Amnesty International: President must stop imminent execution

"Bangladeshi civil society, Amnesty International and other international bodies have welcomed the government’s move to end the longstanding impunity in Bangladesh for serious human rights violations in 1971. However, most observers including Amnesty International have expressed concern over how the proceedings before the ICT violated international fair trial standards There were also irregularities in the proceedings, for instance, the court did not allow the defense to challenge the credibility of prosecution witnesses.".

UK Bar Human Rights Committee: Stay Execution pending independent review

"BHRC has raised serious concerns repeatedly about the fairness of trials before the International Crimes Tribunal (ICT) in Bangladesh, and in particular in respect of the trial of Muhammad Kamaruzzaman in a statement of 11 November 2014. There is evidence that the trial of Kamaruzzaman was flawed on a number of counts, including arbitrary limitation of witness evidence, limited ability to cross examine key witnesses and concerns relating to the impartiality of judges which resulted in an application to recuse two judges of bias being summarily dismissed. ….

"While the BHRC is opposed to the death penalty in all circumstances, it urges the Bangladeshi authorities now to take immediate steps to prevent an execution that arises out of a flawed trial. An independent review of this case and all other cases currently before the ICT must be conducted if victims are to gain genuine accountability for the atrocities committed in 1971."

Commonwealth Lawyers Association: Concerned over sentencing of Md Kamaruzzaman

"The CLA supports steps taken to seek justice and address impunity. Further, it supports the principle of the International Crimes Tribunal (ICT), and its stated aim of prosecuting those who are alleged to be responsible for atrocities committed during the 1971 War of Independence, however, the ICT in its present form does neither of these two things. The likely execution of Kamaruzzaman will be the second instance of state sponsored murder concerning proceedings before the ICT, the first being the execution of Abdul Quader Molla.

The ICT has not adhered to its obligations under domestic Bangladesh law, nor has it met its obligations under those international treaties and agreements to which Bangladesh is a state party, in its failure to ensure all those who appear before it are afforded a fair trial."

At all stages of the process, from court of first instance to appellate courts, the ICT has either failed to acknowledge the serious shortcomings of the procedures adopted, or, if it has recognised such shortcomings, it has failed to address them.

United States government: Best not to proceed

"We have seen progress, but still believe that further improvements to the ICT process could ensure these proceedings meet domestic and international obligations. Until these obligations can be consistently met, it is best not to proceed with executions given the irreversibility of a sentence of death."

* the initial version of this post stated that the lack of a US government statement was notable. However, late in the day, just a few hours before Kamaruzzman was executed, a statement was published and is included above

Monday, April 6, 2015

For the government, is this a good time for the execution of Kamaruzzaman?

Md Kamaruzzman, sentenced to death for 1971 war crimes
With the decision today by the Appellate Division to dismiss the review application made by Md Kamaruzzaman (against the decision of the same court which had earlier upheld the sentence of death), the government is now in a position to execute him.

There does remain the issue of clemency. The appellate division in its decision involving Abdul Quader Molla (involving his review application) accepted that a convicted war criminal does have a right to make a mercy petition, but goes onto state the existing time limits of 7 and 21 days set out in the jail code should not apply. It states that the processes of seeking and disposal of a mercy application, should be done as 'expeditiously as soon as possible'. The judgement states at p.26
He should be informed of his privileges to file a review or a mercy petition, as the case may be, as soon as the intimation about the confirmation of sentence is received by the jail authority and to fix a short date for execution until the existing rules are amended. The petition of review and mercy should be disposed of expeditiously as soon as possible. If the prisoner does not choose to avail of the privileges, the sentence should be executed on the date so fixed without delay, which have become ineffective under prevailing changed circumstances.
Neither Kamaruzzaman, nor his defense counsel, have stated whether he will seek clemency - and no doubt the defense will try and stretch this time out of not saying anything one way or the other as long as possible - but I cannot see Kamaruzzman seeking clemency. This is first because seeking clemency would imply an admission of guilt on his part, and secondly, there is no way of knowing that the clemency would be granted. Kamaruzzman, and the Jamaat-e-Islami, would not want to be in a situation of first admitting guilt and then not being given clemency!

For the government, is this a good timing for an execution? Intriguingly it is likely to happen just before  the mayor elections in Dhaka and Chittagong - just as the Molla execution  took place in December 2013, just weeks before the January 2014 national elections.

Arguably, there at least three reasons why government decision makers might think this was a good time to execute Mollah.

1. The government has categorically defeated the BNP which had sought to force the government to hold new elections. Khaleda Zia has retreated back home with her metaphorical tail between her legs, having gained almost nothing for her party, and lost an enormous amount (imprisonment of thousands of her activists, deaths and injuries of dozens in police shootings, and the remaining activists in hiding etc) - not even mentioning of course the loss of other lives and costs to the country. The Jammat-e-Islami is in a similar position - particularly as their fortunes are tied closely to that of the BNP. The opposition has therefore never been organizationally or morally weaker (though ironically electorally that may not be the case). With the opposition in such a situation, this could be seen by the government as a perfect time to execute Kamarauzzaman - the icing on the cake.

2. The execution of Kamaruzzaman helps to define the Awami League as a 'pro-liberation party', and helps to differentiate the party clearly from the BNP. At a time of elections this is helpful to the Awami League, as it will assist the party in getting the support of people in centre ground who are perhaps skeptical of the governing party, but in favor of justice for 1971. It will of course gain the enthusiasm of some of the party's base.

3. The international community has rarely been so weak in its interactions with the government on human rights issues - and an execution now will gain, I would judge, far less attention or concern than the execution of Molla in December 2013.