Monday, November 17, 2014

Nationalising international justice

Below is the text of a short article recently published in the International Justice Tribune. For those who do not know it, the IJT is an excellent bi-monthly magazine on international justice issues throughout the world. 

You can download the article from the magazine as a PDF, here. (The title given by the magazine by the way is not mine!)

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Recent verdict stir up controversy over Bangladesh war crimes tribunal

David Bergman

A spate of rulings against leaders of Bangladesh biggest Islamist opposition party for atrocities during the war in 1971, shows the International Crimes Tribunals (ICT) forging ahead – despite continuing criticism from outside the country.

On Monday, Bangladesh’s Supreme court upheld the death penalty for Mohammed Kamaruzzman, one of the current leaders of Jamaat-e-Islami, convicted by the International Crimes Tribunal in May last year for genocide and torture. This decision comes hot on the heals of two other death sentences, handed out by the ICT last week.

Wednesday, November 12, 2014

Transcript of what US ambassador Rapp said


Two days ago the US Ambassador for Global Justice gave a conference call to a journalist from Prothom Alo newspaper and one from New Age (myself) who were asked to come to the American Centre

It is not clear why so few journalists were called, nor why the statement was not put on the US state department website.


Rapp however spoke for about 30 minutes, and the detail of what he said is interesting - whether one agrees with it or not.

Below is a transcript of the main part of the conference call. (There is some more, but the line was rather poor, and it will take time to transcribe, and this may not be possible at all.) For those interested to see what Rapp said last time he was in Dhaka in August 2013, see the transcript of that press conference here


On Monday, Rapp started by reading out the following statement over the phone:
‘The United States supports bringing to justice those who committed atrocities in the 1971 Bangladesh war of independence. In doing so, the ICT trials must be free, fair and transparent, and in accordance with international obligations that Bangladesh has agreed to uphold though its ratification of international agreements including the International Covenant on Civil and Political Rights.’  
‘Countries that impose a death penalty must do so with great care, in accordance with a very high standard of due process and respect for fair trial guarantees. It is inevitable that scrutiny will be heightened when a death penalty is pronounced. Therefore judges, as well as authorities having powers of commutation, should exercise great caution before imposing and implementing a sentence of death.’  
As I said during my fifth visit to Bangladesh in August 2014, we have seen some progress but still believed that further improvements to the International Crimes Tribunal process could ensure these proceedings meet domestic and international obligations. Until it is shown that these obligations have been met it is best not to proceed with executions given the irreversibility of a death sentence.’ 
He then allowed some questions to be asked

Saturday, November 8, 2014

Friday, November 7, 2014

Journalists reporting on the numbers of deaths in 1971

How should journalists report on the numbers of those who died in the 1971 war?

This question has again come to the fore
as bdnews24.com has run an article in which Shahriar Kabir, a well known activist in support of war crimes trials, has criticized a news piece broadcast on Al Jazeera in their 'Inside Story' series, which stated that between:
'Historians estimate 300,000 to 500,000 were killed in the nine months by Pakistani military and local collaborators.'
Kabir is quoted as saying in response to this
“Any foreign or local media should use official statistics while handling a story as sensitive as this. Three million were martyred, says the government data. .... What is the source of the information they used instead of the official count? These types of information serve the purpose of those who were involved in the genocide.”
He adds that to say this is 'an offence' and 'There is law for distorting information in our country ... I will demand that measures be taken against Al Jazeera under that law.'

There are a number of important points to be said about this article. (Disclosure: I sometimes write for, and appear on Al Jazeera)

1. Attempts to silence people
Increasingly in Bangladesh there is a view that if you do not like what another person says or another person's opinion, then you seek or threaten legal action against that person, or take some other action to silence them.

Thursday, November 6, 2014

What was actually said on Al Jazeera

There has been some press comment, much of it misconceived, about an 'Inside Story' programme on Al Jazeera broadcast on 4 November, where I was interviewed along with Mofidul Huq (from the liberation war museum in Dhaka) and Toby Cadman (defence counsel, international lobbyist for the accused) about the International
                                                      Crimes Tribunals in Bangladesh.

The full TV programme can be seen here. However, I have extracted out the questions and answers involving me here in order to dispel any misrepresentation of what I had stated in the programme.

Q: (6.33 mins) Tony Cadman, there, saying that an urgent appeal is necessary. [David Bergman] what is your response about what has happened in court? And give us a sense of the feeling on street? We know that there are huge divisions over this issue.

A: It is a complex matter. First thing I think that one ought to be very aware is that these trials are popular within Bangladesh. I mean the opinion polls that have been done about them, show that the vast majority of people support the process of trials seeking the accountability for crimes committed in 1971. And although people do call the country divided, I don’t think it is really fair to say that. There has been a long standing demand from quite a large section of people in Bangladesh for these trials, and that demand has a lot of popularity through the country.

Q: Regardless of whether or not as Toby says the legal procedures have been flawed?

A: I think this actually is exactly the case. It is correct to say that from a fair trial prism,

Wednesday, November 5, 2014

Rolling Blog on Kamaruzzman execution

This is s rolling blog on the Kamaruzzman execution, which the government is now seeking to go ahead in a short number of days

You need to keep refreshing the page to see updates

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This rolling blog is now finished. And further developments in relation to the execution of Kamaruzzman will be discussed on new pages

Monday, 10 November 2014

11.55 pm: Govt backs down on execution without full judgement
I missed, perhaps the most important news of the day. New Age published a report in the paper this morning which stated that the Attorney General gave a press conference on Sunday in which he said that the government was likely now to wait until the publication of the Appellate Division's full judgement in Kamaruzzman's case before executing him. A similar story was published in the Daily Star.

In the press conference, it appears he first acknowledged that if the government was going to follow the Jail Code, the prison could not take any action without a 'warrant of execution' and this would first require a full appellate court judgement

Secondly, that the government would have to wait for the appellate division's judgement on Molla's rejected application to review in order to find out whether Kamaruzzman could seek a review application of his appeal judgment.

So where does that leave us now.

First, this is a big U-turn by the government, and by the Attorney General. It was only a few days ago that it seemed that the execution was going to be any day. And the government/AG rhetoric left little doubt about their intentions.

Secondly, I would speculate that the main reason for this change of events, was the differences of opinion within the appellate division (nothing unusual about that) concerning the right approach about issuing a short order or not. The government, I imagine had hoped that the court would be willing to issue a short order, but at least one judge was perhaps not in favour of that approach.

Thirdly, whatever was the reason behind the government decision, it is a good one. To have executed Molla before he had a chance to even see the reasons why the court had dismissed the appeal would have been simply wrong, yet alone before giving him a chance to review the decision (when there remains a chance that he has a right to seek a review). It also will have the effect of diluting the international criticism about the execution.

Fourthly, there is the issue of when the appellate division judgement will be issued. In the Molla case the short order was issued in mid September, and the full judgement at the end of November - a period of about 2.5 months. In this case, the judgement does not need to be anywhere near as long since many of the legal issues will have been dealt with in the Molla judgement. So whilst it could take as long as 2.5 months, it it is more likely to take less. A mid-December execution, around victory day is still possible - though it will depend on what the appellate division rules in its decision on Molla's review application.

5.10 pm: BREAKING NEWS: US government calls for halt to Kamaruzzaman execution
In a move that I would gauge will be far from popular amongst many/most in Bangladesh, the United States has called for a halt to the execution of the Jamaat-e-Islami leader Kamaruzzaman. It did so through a statement given by its Ambassador-at-large for Global Criminal Justice, Stephen Rapp a couple of hours ago.

The key part of Rapp's statement, given in a conference call to myself (as a New Age reporter) and a reporter from the biggest newspaper in Bangladesh, Prothom Alo, is as follows:
'As I said during my fifth visit to Bangladesh in August 2013, we have seen some progress, but still believe that further improvements to the International Crimes Tribunal process could ensure these proceedings meet domestic and international obligations. Until these obligations can be shown to have been met, it is best not to proceed with executions given the irreversibility of a death sentence.'
I have written a short article for New Age which includes further comments given by Ambassador Rapp, and will link to it when it comes up on the website. I will also provide further details about what he said later.

Sunday, 9 November 2014

1.30 pm: HRW calls for Halt of execution
Calling the international Crimes Tribunals, 'replete with fair trial concerns', Human rights watch has called for the execution of Kamaruzzaman to be halted. The full text is here.

It first calls on government to allow for a review of the full judgement:
"Kamaruzzaman and his counsel have yet to receive the full text of the final verdict, which is necessary for him to be able to lodge a petition for review of the decision within thirty days, a standard procedure in all death penalty cases. Government officials have indicated that the execution is possible before the full verdict is issued which goes against standard policy in death penalty cases."
It then refers to its opposition to the death penalty in all circumstances, but states that such a sentence
“is particularly problematic when proceedings do not meet fair trial standards and where the right to appeal against a death sentence by an independent court is not allowed.”
In relation to fair trial concerns, it states:
Human Rights Watch noted that trials before the ICT, including that of Kamaruzzaman, have been replete with fair trial concerns. In Kamaruzzaman’s case, defense evidence, including witnesses and documents, were arbitrarily limited. Inconsistent prior and subsequent statements of critical witnesses were rejected by the court, denying the defense a chance to challenge the credibility of prosecution witnesses. An application by the defence to recuse two judges for prior bias was summarily rejected.
This follows a disturbing precedent from other cases. In December 2013, Abdul Qader Mollah was hanged following hastily enacted retrospective legislation which is prohibited by international law. Another accused, Delwar Hossain Sayedee, was convicted in spite of credible allegations of the abduction by state forces of a key defence witness with the ICT refusing to order an independent investigation into the charge. Many of the trials have been marred by the evidence of intercepted communications between the prosecution and the judges which reveal prohibited contact. The ICT’s response on several occasions to those who raise objections about the trials has been to file contempt charges against them in an apparent attempt to silence criticism rather than answer substantively or indeed, to rectify any errors.

Delay in appellate division judgment creates uncertainty over right of review

This article was published on 4 November in New Age. See:
this page for what happens next for Kamaruzzman and
this page for the offence for which he was sentenced to death.

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Delay in AD judgement creates uncertainty over review legality
David Bergman

The continuing delay in the publication of the appellate court’s December 2013 judgment rejecting Abdul Quader Molla’s last minute ‘appeal’ to overturn his death sentence has created uncertainty about whether those convicted by the International Crimes Tribunal can seek a review of an appellate court decision.
This has become significant in light of Monday’s decision by the court to uphold one of the death sentences imposed by the Tribunal against Jamaat leader Kamaruzzaman, and the intention of the defence lawyers to review this decision and September’s appellate court decision to uphold convictions against Delwar Hossain Sayedee.