There are a number of points to be made about the opinion of the UN Working Group on Arbitrary Detention which ruled that that the manner in which the International Crimes Tribunal detained without charge one Bangladesh Nationalist Party and five Jamaat-e-Islami leaders was ‘arbitrary’ and a breach of international law. The ruling was adopted in November 2011, but was not put into the public realm until 7 February.
To download the opinion
To read about the UN Working Group
1. Government PR debacle
The opinion by the UN Working Group is simply a PR disaster for the government.
In recent weeks the government - along with a number of its ‘surrogates’ - have been trying to push back against some critical coverage of the International Crimes Tribunal. At recent events both the law minister and the Chair of the National Human Rights Commission have gained headlines in Bangladesh by saying that the due process standards at the ICT are higher than any other international tribunal. Similar comments have been made by the senior lawyer Amirul Islam. And then along comes this opinion.
To me, what is remarkable – putting to one side for now whether one agrees or not with the working group's opinion - is that the government did not respond to the UN Working Group in time, so the group's opinion was reliant primarily on information provided by the defence lawyers; the Working Group could not take into account the Tribunal's view about why it considered its own detention decisions reasonable and within international standards.
One must assume the Bangladesh foreign ministry must know the procedure – indeed it would have been written in the letter that the working group sent to it seeking a response - that if the government does not respond in time then the working group would still make an opinion.
The government says that it sought a time extension. But even assuming that it did, the working group can only provide an extra one month, which would have meant that it had to respond near the end of December. Since the government says that it submitted its response in early February, obtaining a time extension would not have been of much use. It is also questionable whether the government did in fact seek a time extension within due time, since it is clear from the timings the working group did not give the government an additional one month extension, and published its report in December rather than November.
To compound this error of failing to respond, the government has not prepared any public response to the opinion of the working group. When I first contacted the foreign ministry which was perhaps 48 hours after the report was put in the public domain, the ministry appeared not even to have been aware of it.
When, the Ministry under my prodding did find out about the report, they appeared supremely unconcerned that the Working Group had published an opinion without having had the benefit of the government's response. The foreign ministry did not criticise the opinion, it was not clear whether it even had a copy of it. A senior official said that the working group would publish the government's response in due course, and that seemed to be sufficient for them. The official seemed totally unaware of the PR disaster that this report represented for the government. Right now the defence have an independent UN working committee report that says that the Tribunal's detention of six accused was arbitrary and in breach of international law - and the government has done nothing to argue against such an opinion.
What the government could still do is publish its own response to the committee, or a version of it. There is no restriction as far as I can see in them doing this. However the foreign ministry are currently taking a position that it would be wrong for them to do so.
2. Rights and wrong of the decision about detention
The reasoning contained in the UN working group's ruling is not as detailed as one might have hoped. However, my own view on the findings is as follows.
The working group's decision also mentions its concerns about the legal representation of accused (in particular it said in relation to lawyers not being present during interrogation), and disclosure of evidence (in relation to not being able to see the investigation agency's case diaries).
I have discussed elsewhere the issue of the relative lack of importance of legal representation during interrogation here in Bangladesh (see point 6 of this blog). Point 4 of that same blog also deals in general with the issue of disclosure; but the point about the defence not having access to the investigation agency's 'case diaries' - specifically prohibited by the 1973 Act - is a new one. In Bangladesh, investigation case diaries are never disclosed to the defence!
4. Lack of Bangladesh media attention
It is notable how few media outlets covered the UN working group report - and apart from the article in New Age (the paper I work for) and Ittefaq - it has split effectively on 'party' lines. The three opposition papers - Noya Diganta, Sangram, and Amar Desh - did publish details of the UN working group's report. All the other media outlets, who either taken an explicitly supportive position either of the government or at least of the tribunal (including Daily Star, Prothom Alo, Bdnews24.com, Independent and the Sun) did not. How can one explain this?
The report is clearly newsworthy - both the Daily Star and Bdnews24.com have covered opinions of the UN Working Group prior to this one, so it is not as though these news outlets consider the UN working Group irrelevant.
Perhaps they never received the press release issued by Toby Cadman, the defence lawyer with its copy of the ruling. This is possible, I suppose, but I doubt that journalists at these news papers/websites did not receive them. I would assume that the ICT defence team would have sent them out.
Unfortunately, I reckon it is just down to editorial decisions made by journalists/editors at these media outlets who simply do not want to publish anything that could the rock the boat in relation to the tribunal, and are perhaps worried about a government backlash against them.
Whatever ones views about the tribunal, this UN report was clearly newsworthy, and is not good for independent journalism in Bangladesh that so many papers appear to have deliberately ignored it.
To download the opinion
To read about the UN Working Group
1. Government PR debacle
The opinion by the UN Working Group is simply a PR disaster for the government.
In recent weeks the government - along with a number of its ‘surrogates’ - have been trying to push back against some critical coverage of the International Crimes Tribunal. At recent events both the law minister and the Chair of the National Human Rights Commission have gained headlines in Bangladesh by saying that the due process standards at the ICT are higher than any other international tribunal. Similar comments have been made by the senior lawyer Amirul Islam. And then along comes this opinion.
To me, what is remarkable – putting to one side for now whether one agrees or not with the working group's opinion - is that the government did not respond to the UN Working Group in time, so the group's opinion was reliant primarily on information provided by the defence lawyers; the Working Group could not take into account the Tribunal's view about why it considered its own detention decisions reasonable and within international standards.
One must assume the Bangladesh foreign ministry must know the procedure – indeed it would have been written in the letter that the working group sent to it seeking a response - that if the government does not respond in time then the working group would still make an opinion.
The government says that it sought a time extension. But even assuming that it did, the working group can only provide an extra one month, which would have meant that it had to respond near the end of December. Since the government says that it submitted its response in early February, obtaining a time extension would not have been of much use. It is also questionable whether the government did in fact seek a time extension within due time, since it is clear from the timings the working group did not give the government an additional one month extension, and published its report in December rather than November.
To compound this error of failing to respond, the government has not prepared any public response to the opinion of the working group. When I first contacted the foreign ministry which was perhaps 48 hours after the report was put in the public domain, the ministry appeared not even to have been aware of it.
When, the Ministry under my prodding did find out about the report, they appeared supremely unconcerned that the Working Group had published an opinion without having had the benefit of the government's response. The foreign ministry did not criticise the opinion, it was not clear whether it even had a copy of it. A senior official said that the working group would publish the government's response in due course, and that seemed to be sufficient for them. The official seemed totally unaware of the PR disaster that this report represented for the government. Right now the defence have an independent UN working committee report that says that the Tribunal's detention of six accused was arbitrary and in breach of international law - and the government has done nothing to argue against such an opinion.
What the government could still do is publish its own response to the committee, or a version of it. There is no restriction as far as I can see in them doing this. However the foreign ministry are currently taking a position that it would be wrong for them to do so.
2. Rights and wrong of the decision about detention
The reasoning contained in the UN working group's ruling is not as detailed as one might have hoped. However, my own view on the findings is as follows.
- putting to one side whether the detentions were a breach of international law or not there was always a legal problem detaining the men without charge. Although, rule 9(2) of the Rules of Procedure allows the tribunal to detain people for the purposes of investigation, section 11(5) of the International Crimes Tribunal Act 1973 only provides the tribunal the legal power to order their detention once the accused are charged. (NB: The reason why the law may have been drafted in this way – i.e not providing greater powers of detention - is that it was originally drafted to deal with the Pakistani POWs who were being detained in India. There was therefore no need to have a power to detain them during investigation.) The prosecution argued in court that there was no contradiction between section 11(5) of the Act which they said did not relate to a situation when investigation was proceeding, and rule 9(2) which they said only dealt with detention during investigation. Rule 9(2), the prosecution argued, was supplementary to section 11(5) of the Act, not in contradiction to it.
I was never persuaded by that argument nor indeed was one of the countries most senior criminal lawyers who is in charge of prosecuting the BDR mutiny cases on behalf of the government. When the defence raised this issue in court, the Tribunal dismissed this arguments without giving any reasons.
It would have been much better had parliament amended the Act in order to allow these pre-charge detentions to take place. Since it did not, the argument about legality of the detention was bound to be subject to further questions - as indeed it has with the UN working group report.
It should be noted that the UN Working Group states that its ruling on the arbitrariness of the detention is not simply dependent on whether or not detention is lawful, but on a view of 'inappropriateness, injustice and lack of predictability' of the decisions relating to detention. So its opinion does not simply relay on whether or not detention is a violaition of the ICT Act or not. - having detained the men, I have been concerned whether there were good legal reasons for the tribunal to repeatedly refuse bail to the five Jamaat-e-Islami men, whilst investigation into them was continuing. Why do I say that? First, none of the accused were trying to escape jurisdiction prior to their arrest - although they all must have been pretty aware from the media that they were soon to be arrested. Secondly, the defence lawyers argued that they were happy for their clients to abide by any conditions imposed by the tribunal, and suggested to it a number of pretty stringent ones. Thirdly, Md Alim had been given bail, 'on humanitarian grounds' because he was in a wheelchair, and on the basis of these conditions there had been no suggestion that he had tried to interfere with the investigation or otherwise break bail conditions. If he could be given bail on strict conditions, why could the other accused not? Fourthly, they were being required to stay in pre-trial detention for a long time. And fifthly, the tribunal, in all its bail decisions never set out clear reasons why bail should not be given.
- However, having said all that, it should be noted that the pre-trial detention of men accused of war crimes is not unusual – and the Bangladesh tribunal is reflecting the practices that have existed elsewhere. Richard Rogers, the former head of the defence office at the Extraordinary Chambers in the Courts of Cambodia provides the following information which is important to note for context:
- 'At the International Crimes Tribunal in Rwanda, 10-15 accused were held in detention for over 10 years before their guilt or innocence was determined by the trial chamber. Two had to wait for 16 years before a trial judgment was rendered.
- At the Extraordinary Chambers of the Courts of Cambodia the first accused, Duch had been held in arbitrary detention for 10 years prior to his transfer to the ECCC. The sentence reduction that the trial court awarded Duch to compensate him for this illegal detention, was reversed last week by the Supreme Court Chamber. Again, this puts the court in breach of international fair trial standards.
- Another example from the ECCC is Ieng Thirith. After doctors found that she was unfit to stand trial the trial court it ordered her release. But then the Supreme Court Chamber reversed the order to release on the basis that she might get better. So now a mentally unfit women in her 80s, who is supposedly presumed innocent, must languish in detention for more years. She has already been in detention for 4 years.
- And then we have the ICTY – which is another fully-fledged UN court - the court has reversed the burden on the parties so that now the defendants must justify why they should be provisionally released, rather than the prosecutor showing why they should remain detention. Again, this runs contrary to the Working Group's suggestion that detention should be the exception rather than the rule.
- At the International Criminal court the first accused, Thomas Lubanga, has waited almost 7 years in detention without been judged. His case had to be halted twice because of breaches of his fair trial rights by the Prosecution. Yet he still remains in prison to this day.''
This does not necessarily make the Bangladesh tribunal detention decisions 'right', but it certainly does provide an important context to any failings there may be on its part.3. The decision about legal representation and disclosure
The working group's decision also mentions its concerns about the legal representation of accused (in particular it said in relation to lawyers not being present during interrogation), and disclosure of evidence (in relation to not being able to see the investigation agency's case diaries).
I have discussed elsewhere the issue of the relative lack of importance of legal representation during interrogation here in Bangladesh (see point 6 of this blog). Point 4 of that same blog also deals in general with the issue of disclosure; but the point about the defence not having access to the investigation agency's 'case diaries' - specifically prohibited by the 1973 Act - is a new one. In Bangladesh, investigation case diaries are never disclosed to the defence!
4. Lack of Bangladesh media attention
It is notable how few media outlets covered the UN working group report - and apart from the article in New Age (the paper I work for) and Ittefaq - it has split effectively on 'party' lines. The three opposition papers - Noya Diganta, Sangram, and Amar Desh - did publish details of the UN working group's report. All the other media outlets, who either taken an explicitly supportive position either of the government or at least of the tribunal (including Daily Star, Prothom Alo, Bdnews24.com, Independent and the Sun) did not. How can one explain this?
The report is clearly newsworthy - both the Daily Star and Bdnews24.com have covered opinions of the UN Working Group prior to this one, so it is not as though these news outlets consider the UN working Group irrelevant.
Perhaps they never received the press release issued by Toby Cadman, the defence lawyer with its copy of the ruling. This is possible, I suppose, but I doubt that journalists at these news papers/websites did not receive them. I would assume that the ICT defence team would have sent them out.
Unfortunately, I reckon it is just down to editorial decisions made by journalists/editors at these media outlets who simply do not want to publish anything that could the rock the boat in relation to the tribunal, and are perhaps worried about a government backlash against them.
Whatever ones views about the tribunal, this UN report was clearly newsworthy, and is not good for independent journalism in Bangladesh that so many papers appear to have deliberately ignored it.
Oh dear, what a disaster. Shocking that the government can be blind to the importance of world opinion. The talk of 'conspiracies' is almost unbearable. One prays for sense to make its debut one day in Bangladeshi political circles.
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