Monday, November 28, 2011

Rapp Statement on third Dhaka visit

Earlier today (28 November 2011), US Ambassador-at-large for War Crimes, Stephen Rapp gave a significant statement in Dhaka about the Bangladesh International Crimes Tribunal.

Below is the text he read out.

Along with my comments on this, the additional comments he made in response to questions, some of which are also important, will shortly be put up on this blog in a different post.
This is my third visit this year to Bangladesh to learn about your International Crimes Tribunal and to offer ideas to ensure that the trials it holds will be fair and open.

I know of the horrible crimes committed in the country in 1971-- of the hundreds of thousands of victims who were murdered and raped, of the pain inflicted and the property destroyed. The victims of these crimes deserve justice, and those accused of these acts deserve trials where they can test the evidence and present witnesses on their own behalf. Those who are innocent should be found not guilty and be freed. Those who are responsible for these crimes should be found guilty and punished. Given the historic importance of these trials to Bangladesh, the region, and the world, the proceedings should be conducted in a manner that is open and accessible to all.

In March, I made a number of suggestions on how the rules for these trials could be amended to ensure fair and transparent proceedings. Some of these suggestions were incorporated in amendments adopted in June. I regret to say that many were not.

Now the first trial has begun with the opening statements of the prosecution last week, and with witnesses due to begin testifying on December 7.

The focus of my present visit is on how the International Crimes Tribunal will conduct these trials. The statute and the rules are in place; the question now is how they will be interpreted in actual practice. Much can still be accomplished to ensure that justice is done and is seen to be done in these historic proceedings.

First, it is important that the judges, at the first opportunity, define what “crimes against humanity” means. The term "crimes against humanity" has been defined in the statutes and cases of international courts. It has not been defined in Bangladesh. In their charge framing order in the first case, the judges said that they would interpret the statute according to Bangladesh law but look for additional guidance in the decisions of international tribunals. But it is not clear whether the prosecution must prove whether the alleged murders and rapes were committed as part of a widespread and systematic attack against a civilian population; whether they were committed on a racial, religious, or political basis; whether the alleged perpetrators would need to have knowledge of the larger attack. At other courts, the elements of the crimes have been defined by the judges in an early ruling. The same can be done here.

Second, it is important that the same rights be accorded to these accused as are guaranteed to Bangladeshi citizens who are charged with other violent crimes. The Bangladesh constitution and laws provided that this was to be a special court responsible for its own rules and procedures. As the judges have amended the rules to incorporate concepts like the presumption of innocence and proof beyond a reasonable doubt, it is also important that they conduct these trials to ensure that the accused have the same right to consult with their counsel, the same time and ability to prepare their defense, and the same time and ability to challenge the process as they would have in other cases.

Third, while the rules amendments provided for the protection of witnesses, it is important that a system of protection of witnesses be developed in practice and available to both sides. In the first trial, witnesses for the prosecution have already been listed. The defense must file a list of witnesses by December 7. Witness protection measures must be in effect to ensure that those willing to come forth and tell the truth will not be subject to threats and intimidation.

Finally, and most importantly, the process must be accessible to all. It is not easy for members of the public to attend court sessions. Ideally, the trial sessions should be broadcast on television or radio, or weekly reports be aired that would show key testimony, arguments, and rulings. This is being done now in the trials in Cambodia of those alleged to be responsible for the atrocities committed in that country in the 1970s. If this is not possible in Bangladesh, neutral observers should be permitted to follow the trials and produce daily and weekly reports that would be available through the internet and other media.

These trials are of great importance to the victims of these horrible crimes. What happens here will send a message to others who would commit these crimes anywhere in the world that it is possible for a national system to bring those responsible to justice.

I am here because the people of the United States wish to help ensure that this is a process that is fair and transparent. We will continue to work with all those involved in this process to achieve justice in these historic trials.

Saturday, November 19, 2011

Defence walkout: Wise heads must prevail

This is my comment following the defence walkout from the tribunal on Wednesday, 16 November.
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The decision by Delwar Hossain Sayedee’s lawyers to ‘walk out’ of the International Crimes Tribunal on Wednesday is a serious escalation of what appears to have become a trial of strength between them and the tribunal itself.

How did we get to this situation and, more importantly, what can be done to ensure that the trial process gets back on track?

To understand why we have reached the present impasse, one needs to appreciate that the defence legal team has an entrenched view that the trial will not be fair under the International Crimes (Tribunal) Act 1973 or its rules of procedure as they are currently applied by the tribunal.

Amongst its many criticisms, they point to the lack of normal constitutional protections afforded to the accused, inadequate definitions of offences, vagueness of the charges and inadequate time to prepare their defence.

Whilst these arguments barely resonate in Bangladesh (where they are simply seen as part of a political attempt to discredit or destroy the trial) they do have traction outside the country with many if not most of their criticisms accepted by independent lawyers working outside Bangladesh.

The reason the lawyers walked out of the court, however, was not directly about any of these concerns, but rather their view about how the tribunal dealt with a new issue that they had raised.

In relation to a new application, they argued on Sunday last week that Nizamul Haque, the chairman of the tribunal, should ‘recuse’ himself from being a judge in the case against Sayedee.

Their argument was that when he had been a high court lawyer, Justice Haque was a member of a 40 person secretariat of the Peoples Inquiry Commission which in 1994, following an investigation, had published a report alleging that eight people, including Sayedee himself had committed war crimes in 1971.

This report had been submitted by the prosecution as part of its evidence against Sayedee.

Relying on a sentence from the report’s introduction which states that the ‘Commission analysed all the information gathered by members of the Secretariat’, the lawyers argue that the Commission’s report was based upon evidence actually collected by the secretariat itself, of which Haque was a member.

They specifically pointed to 7 out of the 20 counts, now alleged against Sayedee in the charge-framing order, which they claim were first investigated by the secretariat.

The defence lawyers argue that the tribunal’s chairman should ‘recuse’ himself from the tribunal as otherwise he ‘will essentially be ruling on evidence that he has assisted in preparing.’

A lot of this argument is uncontested. Nizamul Haque was a member of the secretariat of the people’s commission, and the report certainly does suggest that the report was written on the basis of information given by this body.

However, the defence relies solely on the role that the report states that the ‘secretariat’ played and doesn't provide any evidence that the tribunal chairman himself actually undertook any investigations.

It may well be the case that he played no actual part in any investigation - and if so the question would then come down to whether having been a member of the Peoples Commission which produced this report in itself creates a sufficient appearance of bias to justify recusal.

The Tribunal’s order on the Monday sidestepped taking a decision on the merits of these arguments and instead stated that the law did not give judges the authority to consider the recusal of another judge.

The two tribunal judges who gave the order in fact put the decision into the hands of the chairman himself by saying that, ‘the matter largely depends on the good conscience of the judge concerned.’

For the defence, this decision failed to resolve its concerns about the bias or apparent bias of the chairman. They wanted a decision on the merits of their arguments – and with the tribunal saying it could not deal with the matter, their focus moved to try and get the chairman to justify his decision not to recuse himself.

Two days later, on the very morning that the tribunal was due to hear another defence application, this time relating to the charge-framing, the defence lawyers filed a new application seeking an explanation from Haque as to why, ‘he continues to sit as Chairman of the Tribunal despite the uncontroverted allegations of bias against him.’

They argued in court that the tribunal should not proceed further in dealing with any others application until it had considered this one.

However, in filing the application that very morning, the defence failed to abide by an agreed procedure that parties should file applications the day before they were to be argued.

After a terse verbal exchange between the judges and the defence counsel, the chairman said that the tribunal would hear the new recusal application on the following Sunday (i.e 20 November) but would continue to consider the application that was due to be heard that day.

It was this decision that provoked the lawyers to walk out.

It is difficult to see any justification for this action by the defence lawyers.

First, in any courtroom, a walk out of lawyers is serious showing significant disrespect for the judges. If this was done in any international tribunal, the lawyers may well be considered in contempt of court. (The defence team would no doubt claim, of course, that it would never need to take such a step if it was arguing before an international tribunal as in these procedures there are clear procedures to challenge judges.)

Secondly, the defence team’s argument that it could not have filed the application on Tuesday, the day before the hearing, since the lawyers were not certain whether Justice Haque was going to recuse himself or not, simply does not stand up. The lawyers could well have found out from the registrar on the Tuesday whether the tribunal chairman was due to sit in court the next day. And even if the registrar could not confirm this, they could still have filed the application that day, and simply withdrawn it on if it turned out that the chairman had decided in the meantime to recuse himself.

Arguably, by not filing the application on Tuesday, the defence team created a very difficult situation for the tribunal to deal with - setting it up for a confrontation of the kind that did in fact happen.

However, arguably, the tribunal could well have played its cards differently.

On receiving the new application, the judges could have adjourned proceedings for a short while in order to allow them to privately consider the situation and the ramifications of this new recusal application.

If they had done so, they may have realized that, putting the late-filing issue to one side, that there is logic to the defence team’s argument that the whole issue of recusal should be dealt with before other decisions were made by the tribunal.

The judges could then have returned to court and adjourned the hearing until either that afternoon, the next morning or even to Sunday. The tribunal could, once reconvened, have then dealt with both this second recusal application, followed by the other application about the order framing charged against Sayedee then before it.

Now, however, the process is in a tricky situation. Even if the judges can resolve the recusal issue to the defence team’s satisfaction (and that is rather uncertain: it remains unclear whether the defence lawyers will continue to defend their client if Justice Haque remains on the bench), there still remains the defence application seeking a review of the charge-framing order which, after the lawyers walked out last Monday, the judges rejected as ‘not pressed.’

Since this application goes to the heart of the nature of the charges against their client, it is difficult to see how the defence will find it easy to agree to continue with the trial process unless this application is properly heard.

So here is a couple of suggestions to get the tribunal process back on track.

The tribunal should first consider revising its ‘rejection’ order and allow the arguments on the charge-framing application by the defence to be made.

It is true this would likely require a further adjournment to the start of the trial, but this is something the tribunal should not be overly concerned about.

Many supporters of the tribunal have strongly criticized what they believe is the unnecessary delay in holding the tribunal – but, as the judges undoubtedly know, a fair trial does require that those accused have adequate time to prepare their defence.

In this case the lawyers received information about the criminal charges that the prosecution wanted framed against Sayedee at the end of July, and found out exactly what charges were going to be framed on 3 October.

It is debatable which of these dates should be considered the starting point for determining the length of time that the defence have had to prepare themselves, but even assuming that it is the earlier date, then it is still only a period of four and half months.

When a person is facing 35 offences involving genocide and crimes against humanity, crimes alleged to have taken place 40 years ago, conviction for any of which can result in a death sentence, this is not an excessive period for a person to have to prepare their defence.

So the tribunal should not think there is any problem in delaying this trial for a short while if doing so would help ensure its smooth running.

And the second suggestion is this. The judges should sit with both the defence and prosecution lawyers, work out a schedule for dealing with all the applications that the defence have filed and intend to file prior to the trial, and any potential review applications that they could file if their original applications are rejected. Having worked out that schedule the tribunal can then set a provisional date for a trial.

This would prevent the defence springing any new surprises, deal with the current obstacles and provide a clear run for the trial. It would also help ensure that the defence had sufficient time to prepare itself removing one of its current, and probably legitimate, grievances.

These suggestions will not remove many underlying concerns that the defence - and indeed others - may have about the tribunal, but at least it will ensure that the tribunal is put back on the right track.

16 Nov 2011: Defence walkout

This hearing was supposed to hear arguments on the application filed by the defence seeking a review of the order framing charges against Delwar hossain.

However as soon as the proceedings started, the defence lawyers handed over two applications to the tribunal judges. One sought an explanation from the the chairman of the tribunal as to why he had not recused himself following the order of the tribunal of the 14 November which has left the decision up to his 'good conscience'.

The second asked for an adjournment of the hearing relating to the application (that was to be heard today) seeking a review of the charge-framing order until this new application relating to recusal was dealt with.

The tribunal chairman said that these applications should have been filed ahead of time.

Tajul Islam got up and explained the situation. He said that they waited until the morning to file them as they did not know whether or not the chairman of the tribunal was going to sit.

Islam said that we have set out the details in the application and we need to ask him why is he sitting at the tribunal, in good conscience.

Justice Kabir said, 'You submitted an [earlier] application. We gave our order. Whether he feels embarrassed or not is up to him (Nizamul Haque).

One of the tribunal judges said, 'I do not feel embarrassed, he can act as a judge.

The judges then discussed the matter privately with each other for a few minutes, and said that they would hear the application relating to the recusal matter on Sunday, 20 November.

Tajul Islam then said that unless and until there has been a disposal of this new application on recusal the tribunal should not deal with the application noq before the tribunal now

Haidar Ali got up and said, 'My lord the recusal application is a scheme only to delay trial and justice. there is no reason for this development. Nizamul Haque Nassim is there and the order has been passed and there is no problem

Islam responded by saying that sccording to the prosecution, the defence can’t question anything. 'We have raised many vital points in the application.'

The tribunal chairman said, 'Mr. Prosecuter take your seat.' He then said. 'The recusal application has been disposed off. Today is fixed for review application'

Islam said, 'We have also applied for adjournment'

The chairman said, 'No'

Islam said, 'We only had one day to make this application. We need time to see whether you will leave or not. We feel embarrassed while you are sitting here. As lawyers it’s also our duty to uphold your honour.'

The chairman said, 'Application will be heard next Sunday. Today's matter is fixed.'

Islam said, 'My argument to that since this application is pending, you cannot deal with another issue'

The chairman said, 'Rejected'

The lawyers then walked out

Nizamul Haque then immediately read out the following order:
'Today was to hear an application filed by the defence. In the meantime, just today honourable learned counsel at 10:30 submitted two applications before the registrar and in front of the tribunal and sought to hear the two applications.

It is noted that these two applications are not noted for hearing today. That the tribunal upon hearing himm fixed next Sunday, 20th November for hearing of these applications.

Today is fixed for hearing the review application relating to the charge-frmaing order. Since in view of the fact that we fixed on Sunday to hear the application, Mr Tajul Islam suggested that he feels embarrassed to argue the review application today.

These applications are not before us. Even then the tribunal the tribunal requires that Tajul Islam should argue the the review application which was fixed, but Tajul Islam upon hearing the tribunal's view, left the court which is unwarranted and unbecoming for him.'

As the application was not pressed, it is rejected.

Defence lawyers press conference (Tajul Islam spoke)

'We have made an application regarding recusal of honourable Chairman. Everyone had expected he will respect the constitution and remove himself from his chair. We waited for two days to observe his action. When we came to court today and realised that he will be holding the hearing, we immediately filed two applications. We wanted to know on what considerable thought is he still at the tribunal.

We wanted time for review petition and adjournment which he dismissed without even looking at it.

If the tribunal continues in this way, we won’t get justice. We hope Mr Nizamul Haque Nasim will show good conscience and step aside.

While he is at the tribunal, we won’t participate in any of its activities.

According to clause 6(2), tribunal has to do everything to ensure justice.

We won’t attend court until the application is disposed of or the chairman recuses himself.

On Sunday there will be one petition. We’ll wait for the order and decide whether we’ll continue to attend.

Prosecution Press Conference (Zead Al Malum spoke)
'You are aware that if one wants to file an application at the tribunal, it has to be submitted to the registrar by afternoon of the previous day. Then it comes to list, and depending on the court, the hearing of that application is held on the next day or later. Haider Ali from prosecution pointed this out before the court.

Tajul Islam has acted in a manner unlawful of a lawyer. There is no legal rule for presenting before the court, repeatedly, something that has been disposed of. Despite that, Tajul Islam has pressurized the tribunal time and again and broke code of ethics and conducts of lawyers.

Tribunal said, as per legal rules, the hearing of his application will be held on Sunday, and it will proceed with the hearing of the review application scheduled for today. He (Tajul Islam) said since you would not hear the application we filed today, we walk out from the tribunal in protest.

Neither the constitution, nor any law of Bangladesh give right to lawyers to walk out of a tribunal

It is to be noted that the tribunal is conducting trial of killing of millions of people in a fair and transparent way, as per Bangladesh’s own law, with judges from the country’s Supreme Court, its own prosecution and investigating team. The trial and investigation is taking place openly. Our print and electronic media are following and observing the investigation.

There has been many research and there is many evidence on these humanitarian crimes around the world. They said we have not committed any crime or wrong in 1971. When prosecution framed charges transparently based on evidence...hearing of one formal charge goes on for few days. You know that even in the cases of serious trials in our country no court or special tribunal puts in as much time for hearing of charges. But this tribunal has done this.

These people can’t accept independence of Bangladesh. Many people involved with this tribunal were also associated with “Save East Pakistan” committee while staying abroad. We all know the identity of defence counsels.

Walking out from court is not approved of by Bangladesh Bar Council or Supreme Court Lawyers Association’s rule of procedure. To leave court, one has to take permission; otherwise it is seen as contempt of court. Tajul Islam has voluntarily and consciously violated the court. By doing so, they have expressed their effort of obstructing the judicial proceeding. We will consider taking legal action against his (Tajul’s) contempt of court.

Since the plea for review of charges was not presented by Tajul Islam before court, it has been rejected.'

When asked by a journalist, what happens when lawyers boycott the court?, he said that 'the law will take its own course. We, prosecution will abide by the law. We’ll think about what action we will take and keep you informed on whatever we do.'

Comment
A subsequent post will set out my comments on this

14 Nov 2011: Recusal decision

This is the order given by the tribunal on 14 November dealing with the application filed by the defence seeking the tribunal to order the recusal of its chairman due to his bias or apparent bias. It was argued on the previous day.

To read the full proceedings that took place on the 14th - where another order was made involving the three british barrister - you should go this post.

Justice Kabir read out the order:
Today is fixed for delivery of order on application dated on 27th October 2011 filed by the accused petitioner, on recusal of Mr Justice Nizamul Haque Nasim, honorable Chairman of the International Crimes Tribunal, Dhaka.

It may be mentioned here that since the application for Recusal of the Chairman has been prayed, he himself stopped from participating in hearing of the matter, but we two members have heard the matter and heard the argument on both the defence and the prosecution, and have disposed of this according to law.

Mr. Abdur Razzaque, the learned counsel with some other lawyers appeared on behalf of the accused petitioner while Mr Shahid Haider Ali with co-prosecutor appeared on behalf of the prosecutor.

At the very outset Mr Abdur Razzaque, learned senior counsel for the defence took us through the Report of the finding of the “Peoples Inquiry Commission” on activities of the war criminals and submitted that you from the report’s appendix B you can see that Mr Nizamul Haque was one of the members of the Secretariat of the people’s commission in 1994 which investigated allegations of war crimes against accused petitioner and others.

He then submitted that the honorary chairman of the tribunal was involved in the investigation process of war crimes against the accused, and so has pre-conceptions about him and so th accused can not receive clear and impartial justice from the Honorable Chairman of the Tribunal.

Further submitted that the chairman took part in the investigation of war crimes in 1993-1994 and as such he was party to the case and so there is a reasonable appearance of bias.

The learned counsel referred to certain relevant part of the Rome Statute and also 3(6) A of the Code of conduct of the Supreme Court of Bangladesh. Referring to the above code of conduct the learned counsel submits that a judge should qualify himself in proceedings when his impartiality might reasonably be constrained.

Lastly he submitted that the honorary chairman should recuse himself from the case or by the tribunal passing order recusing Nizmanul Haque as impartiality has reasonably been constrained.

Mr. Khandker Mahbub Hossain and Mr Moudud Ahmed, after obtaining permission from the Tribunal made submission on the code of conduct and gave examples of recusal from long standing traditional proceedings.

Mr Haider Ali with Mr. Mohammad Ali, the learned prosecutor opposed the petition for recusal of Nizamul Hoque.

To refute the submission of the Defense Mr. Haider Ali submitted that the honorary chairman was a lawyer in 1993/4 and that the People’s Commission Report gave a recommendation to the Government for holding trial and no where in the report did it state that the honorary chairman had been involving in investigation of war crimes, except his name as part of the secretariat of People commission in Appendix B.
He further submitted that the report of the Inquiry commission was not accepted by the then government and so impartiality of this tribunal cannot be questioned without any cogent ground.

Lastly submitted that the inquiry commission has no legal sanction but organised by intellectuals of society to bring perpetrators of war crimes by 1973 Act and such mere inclusion of Nizamul Haque in the secretariat can not be grounds for recusal, and so application may be rejected

Mr. Mohammad Ali, learned prosecutor submits that the application for recusal of the Chairman is not maintainable in law as nowhere in 1973 Act or its rules of procedure can entertain recusal application so application should not be outrightly rejected.

We have heard the lawyers and perused the application for recusal of the chairman and report of the peoples inquiry commission.

Before going into discussion, the pertinent point before us is whether we as judges of tribunal have legitimate authority to dispose of the application of recusal of another judge of the tribunal.

This question need to be addressed first.

Learned senior counsel in support of his submission cited case law of different courts Tribunals which hold trial for war crimes. On perusal of those and special rules of procedure, it is found that those special courts have jurisdiction to hold hearings on applications for recusal, special laws have been framed for court to dispose of application of recusal.

In our jurisdiction the word recusal is a new one which not been applied in any court of Bangladesh.

This Tribunal is formed under International Crimes Tribunal Act 1973 and its rules of procedure. The Act of 1973 does not provide any power for application of recual or any ability for disposal of such application.

This Tribunal is legally bound to proceed under Act of 1973 and we as judges of tribunal cannot order cannot pass any ruling which is not authorised by law to do so.
This tribunal consists of 3 judges. One is declared as chairman and other are members having equal power to try the accused under Act of 1973

Under the above legal situation we are bound to say that we are not legally authorised to pass any order on application for recusal of a co-judge.
However, we think that the matter in issue largely depends upon the good conscience of the judge concerned.

With the above observations, the above application is disposed of

Thursday, November 17, 2011

14 Nov 2011: Spotlight on British lawyers

This post deals with the order by the tribunal criticising the three British lawyers who are part of Sayedee's defence team.

For comments see the end of the post

[The post dealing with the order relating to the application seeking the recusal of the tribunal's chairman, also given on the same day, will be up shortly.]

Right at the beginning of the days hearing, the chief Prosecutor Mr. Golam Arif Tipu rose and told the tribunal that on 10th of November, there was an article in the Daily Sangram, (a Jamaat-e-Islami paper) which mentioned that Nizamul Haque the chairman of the tribunal, was ‘unfit to proceed with the case as chairman of the tribunal in view of his being a member of an inquiry commission. Well this is a very vital issue which effects the dignity and performance of this court. I invite you to take action.’

Justice Zahir Ahmed asked him to sit down and then asked the defence lawyer Tajul Islam to come up. The judge said that the tribunal had received an e-mail addressed to the register of Tribunal from some foreign lawyers namely Toby Cadman, Steven Key and John Cammegh where they expressed their view that the chairman of the Tribunal should resign, and asked whether the foreign had consulted with Islam?

[To download the letter that was sent, click here]

Islam said that ‘they had no personal discussion with me. Perhaps the seniors discussed it. Personally they did not speak with me.’

The judge then asked Mr. Sayedee to come to the front of the court and he was asked whether he had ‘engaged any foreign lawyer in your case’. Sayedee said that they were appointed through local lawyers. One judge asked whether the lawyer consulted with him before sending this e-mail? And Sayedee responded by saying he did not have the opportunity to consult with them.

There was then a minor verbal spat when the prosecution raised an issue about whether Islam was whispering into Sayedee’s ear or not, and Islam said that he had a right to assist his client. ‘It is a client’s legal right to get legal advice,’ he said. After one comment was made by one of the prosecutors, Islam said that he was being threatened. The judge responded that he was also receiving threats.

Justice Zahir said, ‘we are asking Mr. Sayedee and if he doesn’t understand then we will repeat the question.‘

Justice Fazle Kabir then passed the order relating to the recusal application which is posted on a seperate page.

After that order was given, the senior lawyer on the defence team Abdur Razzaque (who was only in court because the tribunal was dealing with the recusal application) was asked about the letter that was sent by the three British barristers to the Tribunal. Razzaque said that these men are very senior lawyers, with one having represented Milosovicz, another having worked with Steven Rapp and that the tribunal should take the matter up with the Bar Standards Board whether or not there has been a breach.

‘I am in agreement with contents of the letter, but they have decided to send the letter,’ he said. ‘I do not support the writing of the letter, but I support its content.'

The judge then read out section 709 of the Bar Standards Board code (see below in order) and asked whether the barristers were entitled to write such a letter.

Razzaque said that the barristers thought they had that right. He said that the barristers were appointed from outside Bangladesh and so the Code of Conduct for the Bar of England and Wales was not applicable. He said that although barristers in UK can only be instructed by solicitors, they can be directly appointed by clients from outside the UK and in such cases, the Code of Conduct for Bar of England and Wales would not apply. ‘They are writing the letter from outside the country. They have been denied the right to come to Bangladesh,' he said

The judge said that he had looked at the Bar council code over the last two evenings, and did not find any exception like this.

The judge asked whether the barrister had consulted with the him before sending the letter. ‘No they did not,’ Razzaque

Justice Zahir then read out the following order:
Yesterday, 14 November, was for hearing of application filed by accused Delwar Hossain Sayedee on 27 October seeking recusal of Mr Justice Nizamul Haque the honorary chairman of the ICT.

Pending the application for recusal, on 9 November, the registrar of the tribunal received an e-mail communication from Mr Toby Cadman stating
‘Please find attached a letter for the attention of the Chairman of the Tribunal. We would be most grateful if it is brought to his attention as soon as possible. We submit this letter with the greatest respect to the Honourable Chairman, but consider it appropriate in the interests of justice to ensure that a highest standards of professional integrity are maintained before the Tribunal.’
The said letter dated 8 11.2011 was an e-letter titled, ‘Recusal letter’ and was signed by Mr Steven Kay QC, Toby Cadman and John Cammegh all from the chamber of Anthony Berry QC of 9 Bedford Row, London WC1, introducing themselves as the counsel representing Delwar Hossain Sayedee. It was addressed directly to Mr Justice Nizamul Haque, tribunal chairman and asked him to recuse himself as chairman of the ICT with immediate effect.

After perusal we are really surprised to note that under what authority and power does Mr Toby Cadman, Mr Steven Kay and John Cammegh work and sent such an unusual address to chairman by mail to a supreme court judge of Bangladesh.

Some three international names have been claimed to be representing Delwar Hossain Sayedee. We have perused the Vakalatnama [power of attorney] for representing Sayedee, and we could not find any excuted Vakalatnamfor these international names, in favour of the accused .

We also asked Sayedee in open court whether he has engaged any foreign lawyer or not. He responded that he has some foreign lawyer who had been instructed thorough his national lawyer for giving them legal advice but that he has no personal knowledge of what they say and write.

In a footnote in the mail it had been noted that this e-mail and any file attached are confidential and legally privileged, that the e-mail is intended solely for person or individuals to whom it is addressed, and that if the e-mail is sent to the wrong person it should be deleted and that the sender should be notified or the IT manager of the chambers on 0207 489 2809. But it is sorry to say that the attached letter has been forwarded to the national press and the Daily Sangram published the contents of the letter on 10 November 2011. So it is very clear that said letter was not at all confidential

The main intention of these persons was to humiliate a judge of the supreme court of an independent sovereign country..

Sending correspondence to a judge of the supreme court and sending said e-mail to print media is unheard of and is not a proper procedure.

We anxiously wanted to know from the Learned counsel Mr Tajul Islam whether he has any discussion with these men before the e-mail was sent. He replied that he had no personal knowledge about the said e-mail.

As Mr Steven Kay, John Cammegh and Toby Cadman are not officially engaged lawyers as per the court before us on behalf of the accused Delwar Hossain Sayedee they are only foreign national members of a law chambers in London UK.

They are neither citizens of Bangladesh nor members of the Bangladesh bar council so we find it difficult to understand what promoted them to send such a letter addressed to chairman as to his recusal in a sub-judice matter.

Though discussed earlier that there is no proof of engagement in court as defence lawyer, we have seen statement that claim that they are members of the defence team and also claim that accused Delwar Hossain Sayedee as their clients. The accused DHS are also stated in open court that they were engaged by his national lawyers.

So a lawyer who claim an accused as his client has to maintain the code of conduct of his own country, as well as the code of conduct where the accused resides.

Now let us see whether there has been at all maintenance and respect for the code of conduct of his own bar.

Mr Toby Cadman, Mr John Cammegh and Mr Steven Kay QC on a number of occasion have made public statements, given appearances, attended political events at discrediting the justice process of the tribunal.

Such examples of this are set out below
- Steven Kay QC on 12 Oct 2011, on website, ‘A wolf in sheep’s clothing
- Toby Cadman on 15 August 2011, on Al Jazeera. Also on 16 October 2011, a public statement on behalf of defence team made to media, including on Toby Cadman’s own website, titled, ‘The international Crimes Tribunal Bangladesh: International Standards and Fundamental freedoms’. Also on 24 Aug 2011, a public statement on his website stating ‘Defence Team takes a Stand
- John Cammegh on 8 November 2011, a statement, “The Bangladesh War Crimes Trial: Reconciliation or revenge’ published on the webiste of the International bureau.
- Finally all of them by own signature sent a letter to ICT by name on 9 November 2012

We want to repeat here some parts of the Code of Conduct of Bar Council of England and Wells and standards of professional.

Section 7, para 701. ‘A barrister … must not undertake any task which: (i) he knows or ought to know he is not competent to handle.’

It is not established that they are ‘competent to handle’ this case by standing for a client in a court of law, and Toby Cadman and two others of the same chambers definitely know that they are not members of the Bangladesh Bar Council so cant stand for accused before this tribunal.

Even then, they took the task of defending Sayedee, so appear to be in clear violation of 7.01 of Code of Conduct.

If that term ‘competant to handle’ not apply then as not physically before the tribunal, but to help other lawyers in providing advice, Toby Cadman and others should maintain respect for para 709 which states that ‘A barrister must not in relation to any anticipated or current proceedings or mediation in which he is briefed or expects to appear or has appeared as an advocate express a personal opinion to the press or other media or in any other public statement upon the facts or issues arising in the proceedings.'

All of them have made public statements, given appearances, aimed at discrediting the justice process of the tribunal and then sending letter on 9 November, not only addressed the letter to tribunal but also sent to national press so that on 10 November Sangram published contents of the same e-mail

So action of Steven Kay etc appears to have violated clause 7.09.01 of the code of conduct of Bar Standards Board, 8th edition of Bar Council which came into effect in October 2004.

They can say that they have a right to express their views. Yes, can do it by para 7.09.02 in an educational or academic context but sending e-mail to chair of the tribunal and then to print media cannot come under para 7.09.02

We are of the view that Mr Toby Cadman, Mr John Cammagh and Steven Kay QC have breached the provision of para 7.09 of Code of conduct of Bar council of England and Wales.

Ask that the register or his deputy to send copy of this order and copy of e-mail to bar standards board and for their perusal and consider the content of the order

May a copy of this order be sent to miniser of law, Justice and Parliamentary Affair to undertake above procedure before the standards board. Accordingly the matter is disposed of.

Comments

I think this matter may well be a bit more complicated than the tribunal (or indeed vocal supporters of the prosecution, and indeed local defence lawyers) are making out.

1. First of all it seem pretty clear that the three barristers have to comply with the Bar Standards Board code. There is an exemption for 'international work' (see annex one to the code) but the three barristers do not appear to fall within it. Moreover, in my correspondence with Tony Cadman about this (see more below: any quotes are from a statement that he has given), he has not tried to make this argument.

So the senior defence lawyer Abdur Razzaque's point made in court that the three barristers did not appear to comply with the code is incorrect.

2. The next question is about whether, under the Code, it was appropriate for the barristers to send this letter to the chairman of the tribunal. It is very unusual for lawyers to correspond with a judge.

Lets us first look at the three British lawyers response to this. All in all they seem to be making five points:
(a) that the letter 'communicated was addressed solely to the Chairman' who was not a party to the proceedings about his recusal;
(b) that the issue involved a very serious matter and it was written in the greater interests of justice: 'One of the most valued principles in ensuring a fair trial is the right of an accused to be heard before an independent and impartial tribunal ... It remains our position that we acted in the interest of justice to bring to the attention of the tribunal the serious issue concerning its composition because we are concerned about the fairness of proceedings. Ensuring that each accused person appearing before the Tribunal receives a fair trial by an independent and impartial tribunal according to the highest standards of fairness and due process is an essential requirement for ensuring that justice is not only done, but importantly it is seen to be done. "
(c) that they have been prevented from addressing the court: 'In light of the fact that foreign counsel practically prevented from representing accused before the ICT and acting in the best interest of their clients that there exists a need to highlight concerns expressed as to the Chairman's position.'
(d) that the 1973 Act prevents either party from challenging the position of a judge therefore direct communication with the judge is necessary: "It is also noteworthy that Section 6(8) of the 1973 Act does not permit the challenge of any judge for whatever reason. This appears to be the position adopted by the Tribunal in our recusal petition."
(e) that they did not breach the professional standards as it 'is equally a requirement that one must promote and protect fearlessly and by all proper and lawful means the lay client's best interests and do so without regard to his own interests or to any consequences to himself or to any other person. This of course must be read in conjunction with the overriding requirement not to bring the administration of justice or the judicial system into disrepute.'

On these arguments, I would make the following points:
- Although the Bar Standards Code does not say directly that a Barrister cannot write directly to a judge, I think there is a general assumption that such a practice is very questionable. It is true that the letter was sent directly to the chairman, and not to the other judges - but at the time of sending, I don't think the British barristers knew that he would not be sitting when this application was heard. However, it should be noted that whilst the application before the tribunal sought an order from it recusing him from sitting, the letter directly asked the tribunal chairman himself to recuse himself - so arguably the letter touches on a different (though connected) point than the application before the tribunal.

- It would seem to me difficult for the barristers to argue that because they cannot represent their clients in court, they have to write a letter to the judge to this effect. This is because there are local lawyers who are representing the same client, who the foreign barristers work closely with, and who can equally make this point to the tribunal.

- For the Bar Standards Board it is likely to come down to an issue of balance: Assuming it is generally wrong for barristers representing a client to write letters to a judge involved in the case, is this principle overridden by wider interests of justice. This will be the key question in hand, to which we will have to wait and see.

3. The next question is whether or not (a) the letter should have been distributed to the media and (b) whether the barristers should generally be publishing statements as they do, some of which are directly send to the media.

Although the tribunal has assumed that the British lawyers distributed this letter to the media, as far as I know there is nothing to show that they did. I, myself was infact sent a copy of the e-mail/letter that was sent to the registrar in the afternoon of 9 November. It was from an e-mail address that I did not recognise, and comes up with no entries when googled. As I was suprised to received the letter, I immediately e-mailed Tony Cadman to ask him about it, and it was clear from his response that he was suprised that I had received it.

It is much more likely that the letter was sent to local Bangladesh media by one of the local lawyers or perhaps one of supporters of the defence team in Bangladesh. the question then becomes whether or not the foreign lawyers authorised this to happen, and we don't know that at the moment. It of course could also have been sent by the registrar's office, but I think that is very unlikely.

Putting that issues to one side, apart from section 709 of the Bar Standards Code (quoted by the tribunal), there is also specific guidance that the BSB has produced relating to the interpretation of this section. The Tribunals appear not to have been aware of that, or if they were, they did not mention this in their ruling. (see this page and go to 'Commenting to the media on cases' in third batch of guidance).

The operative parts of this states:
There is no longer anything to prevent barristers informing the press about their client's view of the proceedings or what their client is seeking to achieve. It is obviously essential that the client should agree to whatever is said on his or her behalf.

Similarly, there is nothing to prevent barristers informing the press of the facts of a particular case or of the particular legal issues that will be discussed. They should be careful, however, not to add any personal views about the merits of the case or the appropriate outcome.
Under the sub-title, 'Bringing the Administration of Justice into Disrepute' it goes onto say:
'Barristers should be careful to express themselves carefully if they are commenting on cases in which they have been involved. It will almost invariably be inappropriate to make allegations about the good faith of a judge or other judicial officer or to use inflammatory language.

The purpose of these rules is to protect the independence of barristers. While barristers owe strong duties to their lay clients, they also owe an overriding duty to the court and should be careful not to bring their independence into question.'
This guidance makes it clear that the key issues in relation to the media, is that (a) a barrister cannot give his personal views, but only that of his client and (b) that their comments should not 'bring the administration of justice into disrepute' by for example the questioning the 'good faith of a judge' or by using inflammatory language.

I think we can assume that all the comments made to the media are the views of the client, or are said with the consent of the client - there is nothing to suggest otherwise (see point 5 below about the issues of representation).

Do the comments bring the 'administration of justice into disrepute'? First part of this is to see whether they have they questioned the good faith of a judge? It does not seem that the letter does that. The letter specifically states: 'This is not a question of personal integrity or personal attack on character,' and focuses instead on 'the appearance of bias in the case against our client.' I also don't think that any of the other statements/ documents mentioned by the tribunal - if one cares to read them (see links above) - question the good faith of the judge.

The second part of this is whether the letter/statements use inflammatory language? The language of the letter itself is very far from inflammatory - and indeed goes out of its way to be polite. Whilst the statements do raise serious criticisms about the legal procedure relating to the tribunal and concerns about the charges laid against Sayedee, it is also difficult to see how you can say that they are inflammatory.

In its statement, the three British lawyers also argue that any criticisms that the tribunal may have with their conduct, must be seen within an over-riding objective, which they as lawyers say they have in representing their client: 'It is difficult to imagine how the criticisms made [by the tribunal] can be interpreted as a breach of this overriding objective,' they state.

They say this in the context of the criticism they have of the tribunal which are set out in their statement as follows:
(1) The First Constitutional Amendment removes all fundamental rights and removes any right to bring a jurisdictional challenge to the International Crimes (Tribunal) Act 1971;
(2) The International Crimes (Tribunal) Act 1971 excludes the application of procedural norms by expressly removing the Criminal Procedure Act and Criminal Evidence Act;
(3) The Presidential Order No. 16 of 1973 grants immunity from prosecution one side to the conflict without exception;
(4) The International Crimes (Tribunal) Act 1971 prevents any interlocutory appeal or judicial review;
(5) The International Crimes (Tribunal) Act 1971 prevents any challenge to any decision issued by the Tribunal with the exception of conviction and sentence;
(6) There is a complete absence of rules of evidence and disclosure;
(7) Counsel is prevented from having privileged communications with their clients;
(8) The Tribunal has resisted the application of international law;
(9) There are no clear definitions of crimes;
(10) The People’s Inquiry Commission has prejudged the guilt of some of the accused;
(11) Those convicted by the Tribunal are liable to a sentence of death;

It will be upto the Bar Standards Board to determine whether the foreign lawyers have breached its code in relation to dealing with the media. However it would seem to me, that in the context of the concerns which the barristers have with the tribunal (and of course the BSB will be looking at these concerns through the eyes of British lawyers and the standards that they expect) that it is unlikely that the Board will find against them on this particular point.

5. Another issue raised by the tribunal is the question of whether the British lawyers can be said to represent Sayedee. I don't fully understand the point being made here by the tribunal, however I think the argument is that since there is no power of attorney with the court, then they have no right to send a letter to the tribunal on behalf of Sayedee.

However, clearly the foreign lawyers do represent Sayedee - having been instructed by the local Bangladesh lawyers. I am not clear why they would need to give the court a power of attorney if they are not arguing before it or filing applications.

6. Final point. Abdur Razzaque, the lead defence lawyer, told the tribunal that he was not consulted about the letter to the tribunal chairman. I think this is difficult to believe. It is clear that the foreign and local lawyers work closely together and the idea that Abdur Razzaque was not aware of the letter being drafted and sent, does kind of beggar belief! I think the local lawyers have to be a bit more straight about this kind of thing - particularly when they are making these comments inside the tribunal.

Wednesday, November 16, 2011

13 Nov 2011: Chairman recusal petition

This hearing concerned a defence application seeking the ‘recusal’ (I,e the removal) the chairman of the tribunal in relation the case of Delwar Hossain Sayedee. There were only two judges present hearing this application– Nizamul Huq, the chairman, had absented himself.

The defence had brought to this hearing their big legal guns. Usually the defence use Tajul Islam and Tanvir Al-Amin to argue their applications in the tribunal (good but young lawyers). However today, there was Abdur Razaque, the head of the legal team (and also a leader of the Jamaat-e-islami party himself), Moudud Ahmed, another senior lawyer and former BNP minister, and Khondaker Mahbubur Hossain who is chairman of the Supreme Court Bar Association.

Abdur Razzaque made the main argument in support of the application.

He said that this was a important day for this tribunal as never in the 200 year history of British rule, or 25 years history of Pakistan rule or 40 years of Bangladesh, has such an application been made.

He said that the application relates to the recusal of Nizamul Haque as chairman of the tribunal, who had been appointed by president on 25 March 2010. ‘From the documents it is crystal clear that Nizamul Huq was a member of the secretariat of the Peoples Inquiry Commission whose job it was to investigate allegations in 1971 involving Sayedee,’ he said

‘Every person knows very well that if a person involved in a matter pending before the court, when it is brought to their notice, the person withdraws. It happens all the time. If you investigate a matter you can not be a judge. Some of the witnesses which are relied on, that very person’s deposition has been taken by Nizamul Huq.’

One of the tribunal members says, ‘personally taken down?’

‘He has taken evidence of some of the witnesses,’ the lawyer answered.

‘This is a case in which the whole world is watching,’ he continued. ‘The situation we are in is perverse. The only case in 275 years where we have to ask for recusal. Nizmaul Huq is not here and it falls on your lordships to deal with this issue.

‘I want to make clear that not concerned with his appointment of a judge, we are not challenging that. His involvement in the investigation can be found by looking at the document, Report of the Findings of the People’s Enquiry Commission on the Activities of the War Criminals and the collaborators’, published on 26 March 2004, with the committee having been set up on 26 March 1993.

‘What is in this report? It shows that committee was involved in the investigation of allegations said to be committed by Nizami, Salauddin Quader Chowdhury, Sayedee and others and a 40 members secretariat was formed, and Nizamul Haque was one of them.’

He read out from the document: “There is no attempt to investigate the war crimes of 1971 by the government of Bangladesh. The duty therefore has fallen on the shoulders of the people themselves who have already made their judgment on Golam Azam known through the people’s court. The next step was investigation into the 1971 activities of other suspect collaborators, to establish whether war crimes trial proceedings ought to be instituted against them. With this in mind, the National Coordinating Committee announced on Mar 26 1993 the formation of the a National People inquiry Commission to investigate the 1971 role of eight collaborators. This would be the first phase of a series of such investigations, eventually leading to probes in 1971 crimes of all suspect collaborators.’

Razaque then asked, ‘Who are the eight collaborators? The petitioner, Delwar Hossain Sayedee is one of them. It is made abundantly clear that the committee’s objective was to investigate their activities during 1971 and establish grounds for individual war crimes tribunals.’

He then quoted again from the report: “With this objective in mind the Commission carried out widespread investigation into the past activities of the either persons named on Mar 26 1993, in the first phase of the inquiry. A 40 member secretariat comprising mainly lawyers, journalists and writers was formed to the assist the Commission in its task. The problem was conducted on the basis of information gathered from documents of the war period, authoritative books written on the war and Genocide, newspaper report of the period, and written statements seen by witnesses from various parts of the country. In addition fresh previously unpublished information was also gathered through field investigation in the home districts of the either accused or where they operated during 1971.’

Razzaq then said that he would now quote a key bit. ‘The Commission analysed all the information gathered by members of the Secretariat.’

Razzaq said, this shows ehat ‘The basis of the report is information collected by the Secretariat.’

He then quoted again from the report: “The commission took the decision to compile the investigation report after scrutinizing and fully analyzing all the information made available. The people’s enquiry commission approved the report before being published. The commission has presented the report in a summarized form to the Steering Committee of the National Coordinating Committee and requested the latter to publish the full report in a book form. Below is the summarized version of the report with details of information against the either accused.’

He then pointed to a part of the report relating to Sayedee and said that he would show that the charges against Sayedee ‘have been taken from this report’

The lawyer then read a segment from the conclusion, “The investigation conducted by the National People Enquiry Commission has proved the legitimacy of the demand for the trial of the eight accused.”

Razaque then said, ‘And this tribunal is now trying them. And who is the chairman of the Tribunal, Nizamul Huq. Nizamul Huq was part and parcel of investigation. If you then look at Appendix D of the report, there are 40 members of the secretariat, 27 of them lawyers and Nizamul Huq is number 25.

‘This is 20 years ago, and he was practicing in the High Court. It was perfectly right for him to do this, but it is unlawful for him now to be a judge in this case.’

He then referred to the Bangla version of the report which spelt the tribunal chairman’s name differently and said that it was not disputed that the name in the report refers to the chairman of the tribunal, but wanted to raise the spelling differences be transparent. ‘I take this to be a printing mistake’ he said.

What does the report say in 1994 and what did it decide? Razzaq then reads out what he contends to be similarities between some of the counts in the frame-charges and the 1994 report.

1. In the report it says, ‘During 1971, Sayedee took active part in the organisation of Rakaker, Al Badr, and Al shams forces in his own area of Pirojpur in the south of the country, in order to assist the Pakistan army’

Counts no 19 says: ‘That during the period of Liberation War starting from 26.03.1971 to 16.12.191 you being a member of Razakar Bahini …’

2. In the report it says, ‘He personally looted houses of Hindu families at Pater Hat area in Pirojpur, citing religious strictures as justification of the repression of the Hindus. He broke into the shop of a Hindu trader named Madan and carried all the goods off home.’

Count 6 says: ‘That on 7 May, 1971, you led a team of Peace (Santi) Committee to receive Pakistani Armyat Paterhat Bazar under Pirozpur Sadar Police Station then you identified the houses and shops of the people belonging to Awami League, Hindu Community and supporters of the Liberation War.’

3. The report says, ‘One Bhaguathi accused of supplying information to the freedom fighters by Sayedee was tied to the back of a motorcycle and dragged for five miles before being killed.’

Count 18 says: ‘On one day, after a fight with the freedom fighters, and at the instance of you, said Bhagirothi was arrested on charge of passing information to the freedom fighters and was tortured and then after taking her to the bank of river Boleshwar she was killed and the dead body was thrown into the river.’

4. The report says, ‘Sayedee and his men also kidnapped and killed others including Krishna Kanta Shaha, Bani Kanta Sikdar, Tarani Kanta Sikdar, Beni Madhab Shaha …’

Count 12 says, ‘That during liberation war on one day a group of 15/20 armed accomplices under your leadership entered the Hindu Para of Parerhat Bazar under Pirozpur Sadar Police station and captured 14 Hindus namely Horolal Malakear, Aoro Kumar Mirza, Taronikanta Sikder, Nando Kumar Sikder and others, all were civilians and supporters of Bangladesh independence.’

5. The report says, ‘Sayedi and his cohorts carried out repression on the daughters of Hari Sadhu and Biod Shahah, she said.’

Count 17: ‘That during the time of liberation war in 1971, you along with other armed Razakars kept confined Bipod Shaha's daughter Vanu Shaha at Bipod Shaha's house at Parerhat under Pirozpur Sadar Police Station and regularly used to go there to rape her.’

6. Sayedee after looting the home of the Talukdars, a locally influential Hindu Land lowning family, kidnapped 25 women from the premises and sent them to the Pakistan army camp.

Count 20: ‘Then under your leadership, a Razakar Bahini consisting of 10-12 armed forces in a planed way, attached the houses of Talukdar Bari in the village-Indurkani village under Indurani Police Station and detained total 85 persons and looted away goods from therefrom.’

Razzaq then said, ‘And this is I think the most important one.’

7. The report says that ‘There are allegations that Sayeedi was involved in the killing of sub-divisional police officer (SPDO) Faizur Rahman, Father of Humayun Ahmed, a renowned write and professor of chiemistry at the university of Dhaka.’

Count 5: ‘As a part of the plan on the same date and time, Mr Foyezur Rahman Ahmed, Sub-Divisional Police Officer, and Mr Abdur Razzak (S.D.O in charge of Pirojpur), were also arrested from their work place and taken to the bank of the said river.’

Razzaq then said, for this there are three witnesses – and he names them. ‘None of the witnesses say that Sayedee was present there. This has come from Nizamul Haque in his role in taking evidence for the investigation report.’

‘Can he now be involved in dealing with this case. Certainly not

‘There is a direct link from this report to the chairman. If the chair is directly involved in the investigation, it is too much for him today to decide that he is part of the tribunal, as there is a very strict rule on this and conviction may lead to capital punishment.’

He then said that he would take the tribunal to certain previous court decisions.
- he referred to tehe 1999 cases Regina v. Bow Street Metropolitan Stipendary Magistrates and others, Ex parte Pinochet Ugarte (No. 2) (House of Lords) which held that:
“…the fundamental principle that a man may not be a judge in his own cause was not limited to the automatic disqualification of a judge who had a pecuniary interest in the outcome of a case but was equally applicable if the judge’s decision would lead to the promotion of a cause in which he was involved together with one of the parties…that in order to maintain the absolute impartiality of the judiciary there had to be a rule which automatically disqualified a judge who was involved…in promoting the same causes…as was a party to the suit”.

“The court cannot rely on its knowledge of the integrity of the judge concerned to outweigh the appearance of bias to the eye of the bystander. The reference point must remain the reasonable observer. This is consistent with the test laid down under article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms”.

“…I am of the opinion that there could be cases where the interests of the judge in the subject matters of the proceedings arising from his strong commitment to some cause or belief or his association with a person or body involved in the proceedings could shake public confidence in the administration of justice as much as a shareholding (which might be small) in a public company involved in the litigation”.
He then referred to the 2000 Yugoslavian tribunal case of Prosecutor v. Anto Furundzija, ICTY Appeals Chamber which held that: “The fundamental right of an accused to be tried before an independent and impartial tribunal is generally recognised as being an integral component of the requirement that an accused should have a fair trial.”
“On this basis the Appeals Chamber considers that the following principles should direct it in interpreting and applying the impartiality requirement of the statute:

A. A Judge is not impartial if it is shown that actual bias exists
B. There is an unacceptable appearance of bias if: (i) a judge is a party to the case, or has a financial or propriety interest in the outcome of a case, or if the Judge’s decision will lead to the promotion of a cause in which he or she is involved, together with one of the parties. Under these circumstances, a Judge’s disqualification from the case is automatic; or (ii) the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.”
.
- he then referred to the case of Prosecutor v. Issa Hassan Sesayin the Special Court for Sierra Leone Appeals Chamber which itself referred to the two authorities cited above in determining whether Justice Geoffrey Roberston QC should be properly disqualified for commenting on the nature of the conflict in a book. It concluded that:
“It is irrelevant for the purposes of this Ruling whether or not the passages hereinbefore referred to are true or not. The learned Justice is entitled to his opinion. That is one of his fundamental human rights. The crucial and decisive question is whether an independent bystander so to speak, or the reasonable man, reading those passages will have a legitimate reason to fear that Justice Robertson lacks impartiality. In other words, whether one can apprehend bias. I have no doubt that a reasonable man will apprehend bias, let alone an accused person and I so hold.”
Razzaque then moved onto to point out the Zead-al-Malum, now a member of the prosecution team, had also been a member of the secretariat.

‘Under the circumstances, disqualification of the judge in this case is automatic. This is well known on the streets of the High court. This is crystal clear. It should be automatic. No case needs to be cited, but unfortunately we need to cite it here. There is a reasonable appearance of bias. This is a very very very good case’ he said.

‘Justice must not just been done but seen to be done. Judges must be above suspicion. The chairman ought to be disqualified’

He then went into a discussion that the chairman might be a ‘material witness’. ‘If the prosecution does not call him, the defence might.

He then made a number of further legal submissions, which are best summed up in this extract from the written application:

That Article 96 (4) (a) of the Constitution provides for a Code of Conduct to be prescribed by the Supreme Judicial Council and which is to be observed by judges. This was most recently published on 7 May 2000 (hereinafter referred to as the Code of Conduct). That pursuant to clause 1 of the Code of Conduct: “A judge should uphold the integrity and independence of the judiciary. An independent judiciary is indispensable to the justice system in Bangladesh. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.”

That furthermore, clause 2 of the Code of Conduct provides that: “(2) A judge should avoid impropriety and the appearance of impropriety in all activities. (2A) A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

That the Code of Conduct also provides for instances when a judge should disqualify himself from the proceedings. Clause 3(6)(A) of the Code of Conduct provides that: “The judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned.”

That under clause 3(6)(d)(iv) of the Code of Conduct a judge should disqualify himself if he “is .. likely to be a material witness in the proceeding”.

That the purpose of the Code of Conduct is to stipulate that any act: “which erodes the credibility and independence has to be avoided. The Code of Conduct is only restatement of values of judicial life and is not meant to be exhaustive but illustrative of what is expected of a judge.”

That Article 148 of the Constitution provides for an oath to be taken by members of the superior Judiciary. According to the Third Schedule of the Constitution a judge will solemnly swear or affirm that he will: “faithfully discharge the duties of [his] office according to law: That [he] will bear true faith and allegiance to Bangladesh: That [he] will preserve, protect and defend the Constitution and the laws of Bangladesh: And that [he] will do right to all manner of people according to law, without fear of favour, affection or ill-will.”

That the right to an independent and impartial judiciary prescribed in the Code of Conduct is also a standard obligation to adhere to under international law. Article 10 of the Universal Declaration of Human Rights provides: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”

That this is further reiterated under Article 14 (1) of the International Covenant on Civil and Political Rights (ICCPR) which provides that all persons are: “entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”. The Human Rights Committee which is tasked with upholding the provisions of the ICCPR has held that: “The impartiality of the court and the publicity of proceedings are important aspects of the right to a fair trial within the meaning of Article 14 (1). ‘Impartiality’ of the court implies that judges must not harbor preconceptions about the matter put before them, and that they must not act in ways that promote the interests of one of the parties. Where the grounds for disqualification of a judge are laid down by law, it is incumbent upon the court to consider ex officio these grounds and to replace members of the court falling under the disqualification criteria. A trial flawed by the participation of a judge who, under domestic statute, should have been disqualified cannot normally be considered to be fair or impartial within the meaning of Article 14.” (Karttunen v. Finland [387/89])

That this fundamental right to an independent and impartial Judge is also recognised in Article 40 (1) of the Rome Statute for the International Criminal Court (ICC) which provides that “[t]he judges shall be independent in the performance of their functions”. The disqualification of a judge is outlined in Article 41 (2) (a) ICC: “A judge shall not participate in any case in which his or her impartiality might reasonably be doubted on any ground. A judge shall be disqualified from a case in accordance with this paragraph if, inter alia, that judge has previously been involved in any capacity in that case before the Court or in a related criminal case at the national level involving the person being investigated or prosecuted.”

That Bangladesh is a state party to the UDHR, ICCPR and ICC and must therefore adhere to its international obligations …….

It is respectfully submitted that the overriding question is not whether the Hon’ble Chairman is a man of integrity, the question is whether an objective observer, would conclude that there is a legitimate fear that he will lack impartiality due to his prior role in the Secretariat of the People’s Inquiry Commission. Irrespective of how limited a role the Hon’ble Chairman may have played in the inquiry into war crimes in the 1990s, the Prosecution now seeks to rely on the findings of the Commission in the case against the Accused-Petitioner. As a member of the Secretariat of the People’s Inquiry Commission, the body that investigated crimes alleged to have been committed by the Accused-Petitioner, the Hon’ble Chairman has a relationship with one of the parties as set out in Pinochet No. 2 and Prosecutor v. Issa Hassan Sesay. The objective impartiality test is clearly made out in that any objective observer could only conclude that an appearance of bias is present.

Moudud Ahmed then stood up and spoke:

He first said that he adopted Abdur Razzaque’s arguments but said that he felt puzzled why there should be a hearing on this point at all. ‘It is unfortunate that you two are sitting having to make a decision on whether chairman should sit. I have respect for the judge and hold him in high esteem. There should be no need to hear the application, as by norms and code of conduct as soon as received application should have withdrawn himself.

He said that this is a case of a highly political nature and ‘whole world is looking at the lordships dispense justice. ‘

He said that the decision would have implications for ensuring the ‘dignity of the court’

Khondaker Mahbubur Hossain then rose and said, ‘I come to your lordship to say that dignity of judiciary must be kept for ourselves and future generations.’

He then discussed the 195 Pakistani prisoners of war who had been detained by the Indian government and were return to Pakistain in 1973, and argued that they too should be held to account.

‘Justice must be done according to law, Human Rights organisations are not looking for the impossible. We all want to see the trial of those responsible. In relation to the question of Nizamul Haque, he cannot be the judge in his own case.’

Haider Ali then spoke for the prosecution. He made the following points:

- The purpose of the application is to delay proceedings and the defence could have made this application at an earlier date;
- no where in the report did it state that the chairman had been involved in the investigation of war crimes
- the chairman’s only connection with the report was that his name was part of the secretariat. There is no evidence to show that he was involved in the investigation.
- the chairman has no bias as he was not a party to this case.
- the report of the Inquiry commission was not accepted by the then government.
- The defence are challenging the constitutionality of the tribunal and they are unable to do this under the Act. This matter has been dealt with at the High Court already. On this point, a tribunal member said, ‘They are just asking him to recuse himself from his case’. The prosecutor then said but ‘the appointment of this judge is at issue in this application’. A tribunal member then said, they are not seeking disqualification. Just asking for recusal in this case
- the writ petition is not maintainable in this court
- judges are assumed to be impartial

Mr. Mohammad Ali, another prosecutor then rose and asked ‘under what section of law did the defence file this application. It is not known. Not cited. This goes to the maintainability of the application which has to be made within the framework of the Act. In the prayer for recusal there is no provision of law cited there.’

He also pointed to section 19(4) of the 1973 Act which allows the tribunal to take judicial notice of certain reports. ‘The inquiry commission was not an international NGO.’

‘So I think this application is nothing more than just to delay the tribunal. There is no right to file the application under the Act.

Razzaq then responded to these argument. He started by saying that he found it difficult to understand the relevance of some of the submissions made by the defence.

He said, that the application was filed on 27 October and that since then noone has denied the central points made by the defence. ‘Geofrey Robertson contested [an application for this recusal], Hoffman contested it, but no evidence was filed by judge or the prosecution – and so each and every line should be taken as correct as there has been no denial. [The point being made here, I think is that, in Bangladesh practice unless a party places an affidavit in opposition to an application, then the facts stated in the original application need to be considered by the courtto be correct.]

He the said that Haider Ali has argued that the prayer was not properly drafted. ‘It is a simple application in simple English,’ he said.

He then said that the High Court writ petition 5/2010 was ‘totally different’ involving the question of whether a judge of a high court would sit in the tribunal. ‘We are dealing with two different worlds; one in south pole, the other in North pole.’

He said that it has been submitted that this is not the forum for record. ‘If so, what is the forum for us? This is the forum. There is no other forum.’

He went on to say that Haider Ali is just saying that the chairman’s name is merely at the end of the report. ‘But look at our facts. He was involved in the investigation process. Who brought it to the court. The prosecution did, and it showed that the chairman was much involved in the process of investigation.’ It is a question of fact and no one has made a challenge to the questions of fact, he said. ‘What more can we do to show that a judge of this court was a member of the investigation body.’

Then said that international rules are not in the Judge’s favour. ‘All the citations are in our favour.’

He then said. ‘I want to make a statement. We are making it clear that if the chairman remains we will call him as a defence witness. We will not stop as it is he who collected the evidence and so we will call him as a witness. If he does not recuse himself, we will make him a material witness.’

The tribunal asked him under want legal provision is the tribunal able to take action. Razzaque responded that on the basis of the code of conduct of judges and also section 6(2)(A) of the 1973 Act. He also raised the issue of the judge’s oath which he said was ‘very wide’. He said that the judge has violated his own oath and the judges code of conduct, and the tribunal could act under section 6(2)(A)

The tribunal then asked him, how can one jude ask another judge to recuse himself. Where is the power for that? Razaq responded that they could in order to ensure justice. ‘It is an implicit power that judges have. Unless you exercise your power, justice will not be done. My submission is that you have powers to pas any order. It is impossible to have trial with chairman as it is.’

Razzaq said that ‘The chairman should resign from the tribunal. The sooner he recuses, the better for us. If he does not recuse, we will make him a material witness.’

The judge said that an order will be given the following morning.

1 Nov 2011: New Age contempt review

This is a holding page. Hearing details will be uploaded shortly

1 Nov 2011: Jamaat bail petition

This is a holding page. Hearing details to be uploaded shortly

30 Oct 2011: Trial adjournment

This is a holding page, and details of the hearing will be uploaded shortly

26 Oct: Jailer contempt petition

This is a holding page, and details of the hearing will be uploaded shortly

23 Oct 2011: New Age submits response

This is a holding page, and details of the hearing will be uploaded shortly

23 Oct 2011: Alim interogation

This is a holding page. Details of the hearing will be posted shortly

18 Oct 2011: Alim bail

This hearing concerned an application by the prosecution to interrogate Md Alim, one of the two Bangladesh Nationalist Party leaders (BNP) detained by the International Crimes Tribunal.

Under the Rule 16 of the ICT rules of procedure, the tribunal can pass an order that an accused person be given into the custody of the investigation agency if the tribunal itself considers it to be ‘indispensable’.

The defence lawyer, Tarikul Islam sought an adjournment since the defence's lead lawyers were either out of the country or otherwise busy.

There was also an application for an extension of his bail, and an application for extension of investigation period.

It was a very short hearing.

The tribunal passed the following order:
'Application filed by accused petitioner for extension of bail is taken up for hearing. It appears that since entered on bail, accused is appearing on dates fixed, and not deviating in any manner from the order, invited to extend bail. Let bail be granted to Alim to next date.

The application filed by prosecution for extention of investigation period is taken up for hearing. 16 Oct was date fixed for progress report and prosecution have submitted progress report which has been perused. On perusal we find investigation is proceeding and prosecution is applying for further time to undertake investigation

We are of the view that three months time maybe allowed for prosecution for submitting formal charges, or progress report which ever is appropriate. Let matter appear on 16 January 2012 for submission of formal charge or progress report.

The application for interrogation under section 16(1) is taken up for hearing. It is our view that should consider application in presence of accused petitioner. Let him appear at this tribunal next Sunday 23 oct 2011 for consideration of application filed by prosecution.

Saturday, November 12, 2011

Sayedee Indictment - tribunal history

This is the final of four posts relating to the 3 October charge-framing order by the International Crimes Tribunal which indicated Delwar Hossain Sayedee on 20 counts of genocide and crimes against humanity.

The first post related to the charges; the second one related to legal issues; the third one concerned the numbers of people who died in 1971; and this one deals with the previous history of accountability for crimes committed in 1971 and the extent to which embarking on the first trial of an individual for international crimes committed during the 1971 war of independence is a 'remarkable' moment in Bangladesh's legal history, as stated by introductory section to the 3 October order.

There have of course been trials of Bangladeshis for alleged crimes immediately following the end of the 1971 war; however, as discussed below, many of the most senior alleged suspects left the newly created Bangladesh, and were not available for prosecution at that time. These men only returned after the assassination of Sheikh Mujib in 1975.

Collaborators Ordinance, 1971
In 1972, the new government enacted the Bangladesh Collaborators (Special Tribunal) Ordinance 1972, which allowed for the prosecution of those alleged to have committed Penal Code offences of murder, rape etc, as well as for political collaboration with the Pakistan military. Reports suggest that, till October 31 1973, trials of 2,848 took place with 752 convictions.

This process of accountability reportedly lost credibility quite quickly, both nationally and internationally, on issues relating to the fairness of the process, as well as the difficulty in getting convictions based on the existing laws of evidence. On 30 November 1973, Sheikh Mujib gave a conditional general amnesty for everyone except for those alleged to have been involved in rape, arson, looting or murder. Whilst in principle violent crimes could continue to have been prosecuted this no longer happened.

Very relevant to the current process, is that many of the leading Bengalis, who supported Pakistan during the war, left Bangladesh in December 1971 after the Pakistan military was defeated and went into exile in Pakistan, UK, Saudia Arabia or a any number of other countries. They were therefore not available for prosecution under the collaborator's ordinance.

The International Crimes (Tribunal) Act 1973
There was also an 'attempt' by the new Bangladesh government to prosecute some Pakistani officers. Following the July 1972 Simla agreement, India repatriated 92,000 Pakistani prisoners of war and civilians back to Pakistan. However, 195 military officers, whom the Bangladesh government said that they wanted to prosecute, remained in Indian custody. In 1973 the Bangladesh government enacted the International Crimes (Tribunal) Act 1973 in order to allow the prosecution of these officers.

However, Pakistan also detained 206 Bengalis whom they said they would prosecute for passing on secret information. No doubt due to this 'hostage taking', as well as pressure from countries who participated in the Islamic summit, and from China, the Bangladesh government allowed India to return the 195 officers.

(See this useful page for more information on attempts at accountability between 1971 to 1974:

1975 to 1990
Following Sheikh Mujib's assassination, many people who had supported Pakistan - including senior members of Jamaat-e-Islami and its student wing, some of whom are now accused of international crimes - returned to Bangladesh. The collaborators ordinance was shortly thereafter repealed. The constitutional ban on religious based politics, put in place under Mujib's government, was removed, and Jamaat began to flourish again as a party

In the period 1976 to 1990, when there was no legitimate political democracy and instead a series of primarily military regimes, the demands for accountability for crimes alleged to have been committed by the returnees was very muted.

Fall of Ershard: Civil society movement for trials
With the fall of General Ershad in 1990, after 8 years in power, and the return to political democracy (the Bangladesh Nationalist Party won the elections in 1991) the civil society demands for accountability of those who had returned to Bangladesh since the assassination of Mujib started afresh. The new pressure from civil society may have been triggered in part by the success of Jamaat-e-Islami in the elections, who managed to win 18 seats. From this time, much of the rhetoric of 1971 war crimes campaigners has been not only in favour of trials for the purpose of accountability but also as a means to undermine politically the Jamaat-e-Islami.

In this period, the Ekatturer Ghatak Dalal Nirmul Committee was formed, under the leadership of the highly respected Jehanara Imam (whose son died in the war) and a People's Commission, linked to this committee, held a 'trial' of Gholam Azam, the leader of the Jamaat-e-islami in 1971, to try and force the government's hand to conduct a proper trial under the 1973 Act. The BNP government was antagonistic to the people's tribunal and many of the organisers were in fact arrested.

When the Awami league came to power in 1996, many campaigners for 1971 accountability hoped that the new government - who when in opposition had supported the peoples commission - would organise proper war crimes trials relating to the 1971 war. Instead, however the Awami League government decided to focus instead on the trials of the killers of the prime-minister's father. Many campaigners were bitterly disappointed by this decision.

With the election in 2000 of a coalition between the BNP/Jamaat, there was no chance of trials taking place - with a number of the alleged perpetrators in fact becoming ministers during this period (Motiur Rahman Nizami, one of the men currently detained, was for example industries minister).

Between 2006 and 2008 a military backed caretaker government was in power, and during thus period, a new organisation, the Sector Commanders Forum was established by the surviving Sector Commanders of the 1971 War, and strongly backed the idea of tribunals.

This gave great impetus to the demands of civil society for trials and the Awami League made war crimes trials a part of their manifesto for the 2009 elections which they went onto win. The government set up the current tribunal in March 2010.

And therefore ...
I have set this out at some length in order to explain that those who have demanded that the most senior Bangladeshi collaborators should be held to account for their alleged offences in 1971 have had to wait a very long time for trials to take place.

It is of course true that the main alleged perpetrators, the Pakistani officers, are not being put on trial: but there is now an attempt to put on trial individuals who were not available in Bangladesh for prosecution during the Sheikh Mujib government, but are alleged to have taken senior positions in assisting the Pakistan military in committing some atrocities.

One has to keep this history in mind, as it in part explains the tone that many take in relation to these trials. Having waiting for such a long time, people don't want to allow the trials to 'fail' - with failure meaning for many people, 'acquittal'. Any negative comments about the tribunal is seen by such people as a direct attack on the tribunal itself and everything they have fought for to get this trial process to happen. rather than an opportunity to make improvements and changes.

This, of course, is no justification for failing to make required legal, procedural or operations changes, but it does help explain the high emotions involved.

Sayedee indictment analysis - legal

This is the second of four posts looking at different aspects of the 3 October charge-framing order. (To see the first one relating to the charges themselves, click here.)

This note is primarily concerned with the part of the order where the tribunal summarised the legal arguments made both by the prosecution and defence, and sets out the views of the tribunal.

The following comments can be made about this section of the tribunal order.

(a) Summary by tribunal of arguments
The defence (and indeed the prosecution) arguments are summarised without providing the context which may have helped explain their significance. Quite complex and important legal arguments are reduced in the Tribunal's order simply to one line, or not mentioned at all.

So for example:
- the defence pointed to section 16 of the ICTA 1973 and Rule 20(1) of the rules of procedure which set out what information is necessary to be contained in any 'charge' including 'the date' of the offence - but these are not referred to in the order at all. Since, as noted in the previous note, the tribunal charge-framed seven counts which provide no dates, may be considered a notable omission.
- arguments made by the defence relating to a decision by the Extraordinary Chamber of the Courts of Cambodia on what was international customary law in relation to 'crimes against humanity' in 1974 have not been mentioned;

(b) Factual mistakes
There are a couple of small factual mistakes made by the tribunal.

The tribunal states at one point, 'In support of [the defence] submissions, the learned counsel drew our attention to a number of decisions of the International Criminal Tribunal for the Former Yugolslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR) and Special court of Sierra Leone (SCSL) which have also been cited in the application for discharge.'

However, no arguments were made by the defence either in their written or oral application that referred to the ICTR or the SCSL.

There are however a number of important arguments made by the defence that referred to case law of the Extraordinary Chamber of the Courts of Cambodia (ECCC), but the tribunal's order does not refer to the ECCC at all.

(c) Tribunal response to defence argument about the offence of 'crimes against humanity'
In its written application (read out in the Tribunal) seeking discharge of Sayedee, the defence made a number of arguments concerning this offence. These were:

- that the Bangladesh tribunal had to hear arguments and make a ruling on whether the offence of 'crimes against humanity' could only be committed in the context of an international conflict or also in relation to other non-international conflicts. (In its written application the defence had in fact argued that the Extraordinary Chamber of the Courts of Cambodia (ECCC) had ruled, prior to trial, that in 1974 international law did allow the offence to be committed without an international conflict. Yet, despite this, the defence argued that the Bangladesh tribunal still had to make a clear ruling on this point);

- more significantly, that the tribunal had to make a ruling on what conduct constituted crimes against humanity in 1971 and in particular whether the attack must be 'widespread of systematic'. The defence argued in its application that the under international law, a person cannot be prosecuted for an offence that was not part of customary international law at the time when the offence took place, pointing to the Extraordinary Chamber of the Courts of Cambodia which had ruled that in 1974 crimes against humanity could only be committed if a number of:
'prerequisites are established to the required standard: (i) there must be an attack; (ii) it must be widespread or systematic; (iii) it must be directed against any civilian population; (iv) it must be on national, political, ethnical, racial or religious grounds; (v) there must be a nexus between the acts of the accused and the attack; and (vi) the accused must have the requisite knowledge”.
- that the '1973 Act does not state what is the requisite knowledge that must be proved by the prosecution,' and this needs to be dealt with in some way by the Tribunal setting out what was the mental element required.

- that the tribunal needed to define the constituent elements of the offence of 'crimes against humanity' - namely, murder, rape etc - as it could not simply rely on the offences set out in Bangladesh national law.

In relation to these arguments made by the defence the tribunal stated in its order:
'In regard to definition of crimes mentioned in the Act and elements thereof, we are of the view that the definitions are quite clear and complete without any ambiguity. The Act was drafted in an era when the crimes enumerated therein were fairly known and understood to the world, and were very much part of customary international law. Therefore, we see no reason why should we be trying to find gaps which are not there or try to borrow definitions from fairly recent international tribunals where the International Crimes Tribunal of Bangladesh do not have any such obligation to do so. However, the Tribunal may take into account jurisprudential developments from other jurisdictions should it feel so required in the interest of justice.

In regard to thresholds of the crimes against humanity and its nexus to armed conflict and the requirement of knowledge, as stated above, we are of the view that the crimes under the Act are adequate in all aspects and therefore it is not necessary to visit other recent notions developed by the statutes of various international tribunals.'
The following comments can be made about this part of the tribunal's ruling:

- the order does not engage directly with the specifics of the defence arguments, but simply holds that 'the definitions are quite clear and complete without any ambiguity ... [and] are adequate in all aspects.' There is no element of judicial reasoning here.

- the order does not respond for example to the defence argument that the offence of crimes against humanity, as set out in the Act, does not contain any mental element. It remains unclear how the tribunal can say that the definition of the offence is clear and without ambiguity, and 'adequate in all aspects' without identifying the mental element of the offence.

- the order states that, the 'crimes enumerated ... were very much part of customary international law.' The order also subsequently states in the context of a discussion about Article 15 of the International Covenant on Civil and Political Rights, that it 'needs to be reiterated that the Act proscribes international crimes that were regarded as crimes under international law long before the Act was enacted.'

It is not clear how the Tribunal came to this decision. The defence, in its application made a strong argument that at least in 1974, the offence of crimes against humanity under 'customary international law' required several constituent elements which do not exist in the 1973 Act in particular the need for the attack to be 'widespread or systematic'. The tribunal does not deal with this argument: its order does not even mention the Cambodian case law or why it is of the view that the offence, as set out in the 1973 Act, is 'very much part of customary international law.' The tribunal does not cite any case law of any kind to support such a contention.

- The tribunal states: 'we see no reason why should we be trying to find gaps which are not there or try to borrow definitions from fairly recent international tribunals where the International Crimes Tribunal of Bangladesh do not have any
such obligation to do so.'

The interesting conundrum is that the ICT has stated many times that it is prosecuting 'international offences.' If this is so, arguably it has to take account of what international law states in relation to the definition of these offences, otherwise it is not prosecuting international offences, but simply a variation of the offence as adopted by Bangladesh law.

D. Date of the offence
The defence made another set of arguments about the need for the 'charge' to have a sufficient factual basis - setting out in particular the need for each count to set out 'specific dates or a relatively small time period' for when the offence was supposed to have been committed. It argued that 'the lack of specified dates is contrary to Rule 20 (1) of the Rules of Procedure' which states that 'at the time of submitting a formal charge in the form of a petition, it must contain the name and address of the accused person, witness, and the date, time and place of the occurrence'.

The Tribunal's order does not deal with these arguments directly in its order and there remain 7 counts in the final charge (counts 12, 14, 15, 16, 17, 18, 19) that provides no date other than some day 'During the liberation war' (see previous blog with details on this)

Other legal points: Pre-judging certain issues

The order states,
'Except those who opposed, hindu communities like others in Bangladesh supported the liberation war which in fact drew particular wrath of the Pakistan military and their local collaborators, who perceived them as pro-Indian and made them targets of attack, persecution, extermination and deportation as members belonging to a religious group.'
More specifically, it goes onto say:
'To prosecute [the Pakistan army's] policy of occupation and repression and in order to crash the aspiration of the freedom-loving people of an independent Bangladesh, the Pakistan government and the military setup number of auxiliary forces such as the Razakars, the Al-Badar, the Al-Shams, the Peace Commrttee etc, essentially to collaborate with the military in identifying and eliminating - all those who were perceived to be sympathized with the liberation of Bangladesh, individuals belonging to minority religious groups especially the Flindus, political groups belonging to Awami League and other pro-Independence political parries, Bangalee intellectuals and civilian population of Bangladesh.'

Arguably, this appears to pre-judge a number of issues that will come before the tribunal. Clearly, we all know that atrocities took place during the 1971 war, primarily committed by the Pakistan military. However a key issue before the tribunal is the extent to which these were committed with the assistance of 'collaborators' and what role these groups played in 'identifying and eliminating - all those who were perceived to be sympathized with the liberation of Bangladesh.' Arguably, this would appear to be an issue on which evidence needs to be heard A reading of these paragraphs might suggest to some that the tribunal may have already pre-judged some of these issues.

In response to this point, the tribunal might argue that the comments about the Al Badr etc are simply 'facts of common knowledge' and that according to section 19(3) of the 1973 Act, 'A Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof.' However, this might be seen as quite a contentious position to take in which the meaning of this section is given a very broad interpretation. Moreover, one would imagine that 'facts of common knowledge' would first need to be agreed between both parties, or where they cannot be agreed, the tribunal would have to make a ruling after hearing both sides of the argument.