Reality Check 1: 'Unprecedented Right to Appeal'

Hyperbole, misrepresentation or indeed simple untruths have been made at different times in public statements outside the court by all sides involved in the war crimes tribunal - sometimes by the government, sometimes defense (and indeed supporters of both).

A recent statement by the government law minister, Shafique Ahmed, however has recently caught my attention - and as a result, this post is the first in an (intermittent) series of 'reality checks'.

This one happens to concern a statement made by a government minister, but others will also deal with statements made by the defense or their supporters.

Bdnews24.com recently published an article quoting the law minister as saying

'They (the accused) can appeal (against their punishment) and have the opportunity to defend themselves. It is an unprecedented provision in any such tribunal' (emphasis added)

This statement comes a couple of months after the minster was quoted as describing the International Crimes (Tribunal) Act 1973 as 'the best law in the world' where he again, amongst other things referred to the fact that  'the accused are entitled to file an appeal against conviction,'

The question:

Is Bangladesh's 1973 Act the only legislation dealing with international crimes that contains a right of appeal against conviction?

Let us go through all the contemporary international tribunals and see whether they have rights of appeal:

International Criminal Tribunal for the Former Yugoslavia. The 1993 Statute of the tribunal set up an appellate tribunal and Article 25 sets out the circumstances when an appeal of a judgment is possible.
International Criminal Tribunal for Rwanda: The 1994 Statute of the tribunal sets up an appellate body and Article 24 seats out the circumstances when an appeal of a judgment is possible.
International Criminal Court: The 1998 Rome statute of the International Criminal Court sets up an appellate tribunal and article 81 titled 'Appeal against decision of acquittal or conviction or against sentence' and sets out the details of the right to appeal against conviction.
Special Court for Sierra Leone: The 2000 statute of the tribunal set up an appellate tribunal, and Article 20 sets out the circumstances when an appeal against a judgement is possible.
Ad Hoc Court relating to crimes committed in East Timor: In November 2000, the Indonesian Parliament passed Law 26/2000 incorporating the Rome Statute of the International Criminal Court (ICC) - which as set out above includes the establishment of an appellate tribunal.
Cambodia: Article 9 (new) of 2004 law on the establishment of extraordinary chambers in the Courts of cambodia for the prosecution of crimes committed during the period of democratic kampuchea establishes both a trial court (known as the Extraordinary Chamber) and an appellate tribunal (known as the Supreme Court Chamber) ' Section F of the rules of procedure, titled 'Appeals from the Trial Chamber' sets out in details the manner and circumstances of an appeal.
Special Tribunal for Lebanon: The 2007 Agreement on the establishment of a Special Tribunal signed by the UN and the Lebanese government in 2007 sets up an appellate tribunal and ARticle 26 sets out the ground for appeal.

So The 1973 Act is totally unexceptional in having a right to appeal against conviction.

What the Law Minister may have been alluding to is that neither the accused prosecuted for crimes committed in World War 2 in the Nuremberg Trials (which took place in 1945/6) nor those prosecution in the International Military Tribunal for the Far East (also known as the Tokyo Trials which commenced in 1946) had a right of appeal.

What is true however is that Bangladesh's 1973 Act was the first international crimes legislation enacted with a right of appeal following conviction.

However, all those accused in contemporary tribunals do have a right to appeal.

Moreover, all the contemporary tribunals listed above have a right of appeal of certain decisions made by the trial court not only post-conviction but also in relation to certain decisions, made by the tribunal pre-trial (known as interlocutory appeals) which Bangladesh's 1973 does not provide.

There was a change in the Bangladesh tribunal's rules of procedure which allowed either party to seek a review by the tribunal of a decision which itself has made - but this is very different from an independent court reviewing the decision.

As far as I know (and if I am wrong please someone correct me on this) the Bangladesh tribunal has not overturned or amended a single substantive decision it has made that has come up before it for review before it - which of course is not really that suprising since it made the decision in the first place.

Pinnochios

In the style of the Washington Post, I will give 'pinnochios' depending upon the level of inaccuracy in the particular statement - with four pinnochios being the maximum. The statement by the minister was wholly inaccurate, however he was probably meaning to allude to the fact that the 1973 Act was different from the Nuremberg and the Tokyo tribunals. I give the statement three pinnochios

What offense did Amar Desh commit?

I have previously criticized Amar Desh's decision to publish the whole unedited Skype conversations between the former tribunal-1 chairman, Justice Nassim and an expatriate Bangladesh legal academic, Ziauddin Ahmed. It failed to solely focus on the material that was in the public interest (which was arguably justifiably published) and instead also publishing those parts which were private or otherwise potentially defamatory of others (which should not in any situation have been published).

One understands that unlike the Economist (which published a minimalist article), Amar Desh does not have the same level of (or indeed any?) independent legal advice to help it make such decisions; and that there is not the same regulated environment in Bangladesh as there is in England which has the Editors Code (i.e there is no clarity in the law about what can and cannot be published); and in addition there was some level of urgency to publish. Yet in my view this is no defense to the publication of unedited transcripts.

But the paper and the editor appear to be facing the prospect of criminal prosecution. What offense may have ben committed by the editor?

Sedition?
Amar Desh and its editor is now under criminal investigation, apparently - according to press reports - for the offense of 'sedition', following a complaint made on 13 December 2012 filed in the chief metropolitan magistrate's court by, unsurprisingly, a prosecutor to the war crimes trial, Shahidur Rahman. The newspaper, New Age, in its reports stated:

'Magistrate Hasibul Haque directed the Tejgaon police officer-in-charge to register the case as the first information report and take legal action against the accused. In keeping with the Code of Criminal Procedure Code, the police can arrest the accused charged with sedition without any warrant for arrest.'

What is the offense of sedition? Section 124 of the Penal Code states:

Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law shall be punished with imprisonment for life or any shorter term, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

Explanation 1.-The expression "disaffection" includes disloyalty and all feelings of enmity.
Explanation 2.-Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

Explanation 3.-Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

Whilst the section itself seems to be very broad in its application, it needs to be read alongside the  'explanations' which does restrict it's application (somewhat) to ensure that ordinary political speech or writing are not included within the definition. Nonetheless it is still very broad in its application allowing words which 'excit[e] or attemp[..] to excite hatred, contempt or disaffection' against the government to be deemed sedition.

There is quite a lot of case law (according to Md Zahurul Islam's commentary, p.194-198 of 2010 edition: 'The Penal Code") on the meaning of this offense but there does not appear to be any decisive case as to whether the offense should be defined broadly or narrowly. 

That being said, it is difficult to see how the publication of these particular conversations between a judge and a lawyer could reasonably be deemed seditious - since they are not in any way directed at the government. Moreover, surely if they are seditious, would not both Justice Nassim and Ziauddin also need to be prosecuted since they are the ones that spoke the words?

(One should note that if this case were to proceed further, the prosecution would have to be specifically authorized by the government).

Information, Communication and Technology Act 2006
Prior to the magistrate passing an order, another lawyer had filed an application before the High Court seeking an order against Amar Desh, suggesting that action be taken against its editor for an offense under the ICT Act 2005. The Daily Star's report of that day states:

During the hearing yesterday, petitioner's lawyer Shafiuddin Ahmed told the bench that Mahmudur Rahman had committed grave criminal offence under sections 56 and 57 of the Information and Communication Technology Act, 2006.

Section 56 of the Act titled 'Punishment for hacking with computer system', states:

If any person
(a) with the intent to cause or knowing that he is likely to cause wrongful loss or damage to the public or any person, does any act that thereby destroys, deletes, or alters any information residing in a computer resource or diminishes it value or utility or affects it injuriously by any means;
(b) damage through illegal access to any such computer, computer network or any other electronic system which do not belong to him
then such activity shall be treated as hacking offense.

And section 57, titled 'Punishment for publishing fake, obscene or defaming information in electronic form:

(1) if any person deliberately publishes or transmits or causes to be published or transmitted in the website or in electronic form any material which is fake and obscene or its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read see or hear the matter contained or embodied in it or cause to deteriorate or creates possibility to deteriorate law and order, prejudice the image of the State or person or causes to hurt or may hurt religious belief or instigate against any person or organization then this activity of his will be regarded as an offense
(2) whoever commits offence under sub-section (1) of this section he shall be punishable with imprisonment for a term which may extend to ten years and which fine which may extend to Taka one crore

I think it is pretty safe to assume that the editor of Amar Desh was not actually involved in the hacking of the skypte conversations, so it is very difficult to see how he could have committed an offense under section 56.

And in relation to section 57, no-one has suggested that the material is 'fake' or 'obscene' or could 'tend to deprave/corrupt people' or may 'hurt religious belief' or could result in a 'deterioration in law and order'. Some of the material published could be said to 'prejudice the image' of some people but it does not appear that this section was enacted simply to further criminalize the offense of libel - which would be the effect if it was used in this way.

The ICT Act does not contain an offense dealing with the publication of illegally obtained information.

Press Council Act 1974 and Code
The Press Council Act 1974 establishes a press council whose main function is defined in section 11(1) as, 'to preserve the freedom of the Press and to maintain and improve the standard of newspapers and news agencies in Bangladesh.'

In furtherance of this main object, one of the Press Council's functions is set out in section 11(2)(b):

'To build up a code of conduct for newspapers and news agencies and journalists in accordance with high professional standard.'

Such a code has in fact been drafted. Para 16 states:

"It is the responsibility of the newspapers to publish news relating to case under trial and to publish the final judgment of the court to reveal the actual picture of issues relating to trial. But a journalist shall refrain from publishing such comment or opinion as is likely to influence an under-trial case, until the final verdict is announced." (emphasis added)

There is no public interest defense included here, nor is it clear what is the relationship between this code and the contempt of court laws in Bangladesh.

It would appear that the Amar Desh transcripts could well be considered a breach of this clause. However, breach of this Code has limited sanctions. Section 12 of the Act sets out the powers of the Council which only amounts to being able to 'warn, admonish, or censure' the newspaper/journalist and being able to force a paper to publish a report relating to any inquiry it undertakes:

(1) Where, on receipt of a complaint made to it or otherwise, the Council has reason to believe that a newspaper or news agency has offended against the standard of journalistic ethics or public taste or that an editor or a working journalist has committed any professional misconduct or a breach of the code of journalistic ethics, the Council may, after giving the newspaper or news agency, the editor or journalist concerned an opportunity of being heard, hold an inquiry in such manner as may be provided by regulations made under this Act, and if it is satisfied that it is necessary so to do, it may, for reasons to be recorded in writing, warn, admonish or censure the newspaper, the news agency, the editor or the journalist, as the case may be. 

(2) If the Council is of the opinion that it is necessary or expedient in the public interest so to do, it may require any newspaper to publish therein, in such manner as the Council thinks fit, any report relating to any inquiry under this section against a newspaper or news agency, an editor or a journalist working therein, including the name of such newspaper, news agency, editor or journalist. 

(3) Nothing in sub-section (1) shall be deemed to empower the Council to hold an inquiry into any matter in respect of which any proceeding is pending in a court of law. 

(4) The decision of the Council under sub-section (1) or sub-section (2), as the case may be, shall be final and shall not be questioned in any court of law.

A breach of the press code therefore may have taken place, but there is limited legal sanction available.

See Part 2: Interview with Mahmadur Rahman (coming)

Sayedee: to retrial or not to retrial

A question facing tribunal one, when it sits for the first time time tomorrow with a new tribunal judge, is whether or not to hold a re-trial in the case of Delwar Hossain Sayedee.

I have discussed this question in a previous post, which can be found here.

However since then, the government has made its view clear, and two international human rights organizations/groups have issued statements.

The legal position appears to be that it is technically possible for the trial to continue with a new judge replacing Justice Nasim - and for the bench to continue with making its judgment even though none of the three judges have heard all the evidence. The new judge will not have heard any of the witnesses; the new chairman of the tribunal (brought back from Tribunal 2) heard the prosecution witnesses only when he was previously in Tribunal 1; and the remaining judge has only heard the defense witnesses.

The government position is that the trial should continue from where it had ended. New Age on 14 December described the law ministry's position as follows:

State minister for law Quamrul Islam said on Thursday that the reconstituted International Crimes Tribunal would resume trial from where the previous judge had left it. 

He said that the new chair of the tribunal might hear the already-concluded argument anew for his satisfaction and in that case the tribunal might take three to seven more days to complete the process, which would resume on December 17.

Human Rights Watch however issued a statement calling on the need for a re-trial. It states:

“It would be highly irresponsible and unprofessional for a verdict to be delivered when none of the judges heard all the evidence and were unable to assess the credibility of key witnesses, particularly in a trial involving 40-year old evidence and complex legal issues,” said Brad Adams, Asia director at Human Rights Watch. “Before the chair of the court resigned for improprieties only one judge had heard the totality of the evidence, and now even that one judge is gone. A new trial is the only way for the court to preserve its integrity ...

The reason why courts throughout the world listen to oral testimony is to be able to decide for themselves whether they think a witness is credible, or what value to give to the evidence before them based on direct questions and challenges to the evidence. ... In the Sayedee case, three judges— not one of whom has been present throughout the presentation of the entire body of evidence— will be delivering a verdict which could potentially send the accused to the gallows. Sayedee may or may not be guilty, but the only way to know is through a fair trial by judges who hear all the evidence.

In relation to the issue of existing Bangladesh law, the statement says:

It is common practice in Bangladesh for a trial to continue when a judge is replaced, falls ill, or is unable to continue for other reasons. The statute that governs the ICT contains a section which allows the replacement of a judge. However, the statute does not address cases in which none of the judges is present throughout the trial.

The British Bar Human Rights Committee* concurred with Human Rights Watch's position. In its statement, it said:

'Notwithstanding that Bangladesh legal practice allows for trials to continue with a judge being replaced, the Sayedee trial now appears to be reaching a conclusion without a single member of the final panel having heard the totality of the evidence. This is a grave denial of the most basic fair trial standards. ..

[T]he most recent developments as to the constitution of the court mean that no fair trial is now possible for Sayedee. The BHRC considers that a re-trial must be ordered, both for the fairness required by international standards for the accused, as well as to ensure legitimacy of the ICT process more broadly.' 

Comment

First, it should be said that it remains unclear why the Bangladesh government is making any statements about what decisions the newly constituted tribunal will make - since the tribunal is supposed to be independent from the government. Its statement would seem to be entirely inappropriate.

Secondly, there are already concerns about the Sayedee trial, which I have written about in a number of posts. 

Third, if the tribunal is concerned about its future credibility (at least internationally) it would be advised, irrespective of what the government or the human rights organization say, to give consideration to the question of whether it should hold some kind of re-trial. If well planned, a re-trial does not need to take anywhere near as long as the current trial has taken.


* It describes itself in this way: 'The Bar Human Rights Committee of England and Wales (“BHRC”) is the international human rights arm of the Bar of England and Wales. It is an independent body concerned with protecting the rights of advocates, judges and human rights defenders around the world. The Committee is concerned with defending the rule of law and internationally recognised legal standards relating to human rights and the right to a fair trial. The remit of BHRC extends to all countries of the world, apart from its own jurisdiction of England & Wales. This reflects the Committee's need to maintain its role as an independent but legally qualified observer, critic and advisor, with internationally accepted rule of law principles at the heart of its agenda.' 

Any practicing of non-practising member of the Bar in England and Wales (i.e a barrister) can be a member of this committee - and it may be the case that the three barristers involved in advising the Jamaat accused are members (as could be those Bangladesh lawyers who are member of the prosecuting or defense team of lawyers) though it should be noted that they are none of the three are on its Executive Committee. 

On victory day - a dilemma about the trials

On 16 December, Bangladesh's 41st Victory Day, celebrating the Pakistan military surrender at the Ramna Race course, here is a difficult dilemma facing fair minded people in Bangladesh who support the International Crimes Tribunal. It is as follows:

When you support the principle of accountability for the crimes against humanity committed during Bangladesh's 1971 war of Independence. 

When you or your friends or neighbors have lost friends or relatives in 1971 at the hands of the Pakistan military or those who aided and abetted it. 

When you see that these same people whom you believe were involved in 1971 war crimes have subsequently been rehabilitated as elected political leaders and government ministers. 

When you have witnessed them refusing to acknowledge the crimes of 1971 and indeed on occasion persecuting those who demand accountability. 

When you are opposed to the Islamic politics that these people and their party propagate.

When you have seen statements by them refusing to recognize the dignity and equality of fellow citizens of Bangladesh.

When finally after many years of campaigning several of the front ranking individuals have finally been arrested and are facing trial.

When you know that the criminal justice system in Bangladesh is highly defective, allowing corruption and manipulation to allow powerful men, of all political shades, to escape justice and to enjoy impunity.

When this appears to be the one and only possibility for trials to take place ...... 

In this context, how should one respond when the trials of these people - in tribunals which are grossly under-resourced and staffed - appear to raise serious due process concerns? 

Should one just turn a blind eye to these apparent defects in the trial as the greater good is achieved by allowing a flawed process to continue? Should the 'greater good' of holding these individuals accountable trump the principle of fair trials?  

Or, should you acknowledge the limitations of the ongoing process and do your best to demand that necessary changes are made, even though this may ultimately provide an opportunity for the defense to end the trials, or prolong them, and escape accountability?

This is a real dilemma facing many people in Bangladesh and abroad (other than those who are diehard supporters of the accused or are political enemies of the current Awami League government) in relation to the International Crimes Tribunal being held here in Dhaka. 

It is a particularly crucial question as many of those facing this dilemma are journalists, editors and opinion formers. What they say and think counts in Bangladesh, and sets the tones for others. 

And at present, they are for the most part, turning a blind eye.

Below are a number of reasons why this position is not the best approach

1. Fair trials are the best way to determine guilt. There is of course no denying that the the Jamaat-e- Islami as a party, and its individual members, supported the Pakistan military - but the question is whether particular accused individuals have committed crimes. That requires a focus on their individual conduct and whether that conduct falls within the definition of offenses set out in the 1973 Act, as understood by reference to international case law. 

People's assumptions of guilt relating to 1971 are in most cases dependent on second hand narratives told by those they know or published in newspaper articles and books. To establish whether a particular individual has committed a specific crime however a court must assess both prosecution and defense evidence fairly, and determine whether guilt is proved on the basis of evidence proved 'beyond reasonable doubt.' And for that to happen the trial needs to be fair.

It is true that the tribunal is by no means a 'kangaroo court', which those supporting the defense have on occasion claimed. It is a court which does afford some basic protections of a due process trial - defense lawyers, defense witnesses, cross examination of witnesses, etc. It is also a tribunal which has ensured that the accused are given far more welfare rights in prison than any other accused has been given by any other national court in Bangladesh; arguably the tribunal has bent over backwards to provide  prison conditions that are as good as one can hope to achieve in Bangladesh.

But at the same time, it is also the case that real concerns about the trial of Sayedee have been raised bolstered further by concerns raised by the information disclosed in the Economist magazine. 

It is certainly true that many of the problems which have been highlighted about this tribunal, are  evident in many other criminal trials in Bangladesh. And one can see why it may appear to be unfair that this one trial is subject to such attention when all other trials, with similar problems, are ignored

However, this is also probably the biggest trial in Bangladesh's history, it involves leaders from two opposition parties (even if being a leader of the opposition party is not the actual reason they are on trial) and it should be no surprise to anyone that the world is watching. The concerns about due process in these trials cannot therefore just be brushed aside.

2. Consistency in fair trial advocacy: Many of those who now remain silent over due process issues relating to war crimes trials, have been the same people who to their credit been campaigning for the independence of the judiciary, for constitutional rights, for fair trials and for the de-politicisation of the police and justice system. However, if one supports these principles, one cannot pick and choose on which occasion they should be applied; they need to be applied not only when one is sympathetic to the accused (i.e the case of Limon) but also when one is unsympathetic to those in the dock.

It may certainly stick in ones's throat that the Jamaat and BNP leaders under trial have never shown any prior interest in fair trials when they were in a position of political power. But if one supports the principle of fair trials, one cannot just simple apply them to the saints, and not to the 'sinners'. It would be wrong to only apply principles of fair trial only to those cases when one is sympathetic to the person in the dock.

Failing to apply these principles across the board is very corrosive to the criminal justice system in this country and precludes the possibility of reform which would be beneficial to every citizen. This is because fair trial advocates tend only to support fair trials when it is 'their' accused who is being prosecuted - and are quite happy to see unfair trials of those who are their political opponents.

3. Credibility nationally and internationally: The trials were established with generally widespread support in Bangladesh, with some apparently tacit support from the leadership of the main opposition party, the Bangladesh Nationalist Party. There is now a situation where the BNP as a party appears completely opposed to the tribunals. There are many reasons for this - some of them simply political, of course - but the manner in which BNP has moved from giving tacit support to its current outright opposition, has certainly been facilitated by due process concerns that have come to light at different points in the process. It is now fair to say that the country is increasingly divided on these trials - and the overall credibility of the tribunals is in question. Yet, in a crisis, there is opportunity. And whilst many things should have been done earlier, it is still possible that reforms can take place to regain this credibility. 

These trials are being played out on an international stage. Those who campaigned saw these trials as a great opportunity not only to show case Bangladesh justice, but also to tell the world about 1971. The trials were also bound to get a great deal of international attention. Apart from dealing explicitly with international criminal offenses, at an early stage the accused hired a number of international criminal lawyers to assist it. 

Now, internationally, these trials have even less credibility than they do nationally. Those human rights organizations with an interest in the tribunal have all raised critical questions. The views of these organizations can change, but this does require reform. 

But no change will happen unless those who want credible trials are open in making that demand. And if they don't the trials will find it very hard to regain their widespread credibility both nationally and internationally.

(see also: Will the tribunal continue to have the support of Bangladesh's civil society establishment

Tribunal bans 'any report' on hacked conversations

The logo of the newspaper
Amar Desh

The International Crimes Tribunal this afternoon banned 'any transcript, report and article' relating to the conversations between former chairman of the tribunal, Nizamul Huq (recently resigned) and the Belgian based Bangladeshi origin academic Ziauddin Ahmed.

This order followed an application made by the prosecutor Rana Das Gupta in Tribunal 2 (The defense counsel present was Advocate Farid.)

Prosecutor: My lord I want to present a submission on behalf of Chief Prosecutor, may I?
Justice: Yes.

Prosecutor: Firstly I want to refer section 11 (4) of ICT Act by which Tribunal can punish anyone who obstruct in tribunal proceeding in any way. We have noticed that last three or four days Daily Amardesh and Daily Sangram are publishing Skype conversation held between Ex-chairman of ICT BD-1 Nizamula Haque Nasim and Ahmed Zia Uddin. I think this is a crime to hack anyone’s Skype account. By publishing those personal matters I think these two newspaper s violate the rights of privacy, personal secrecy and personal security.

We think they are publishing those mala-fide intention to obstruct in tribunal proceeding and for serving special purpose. So we are humbly praying to take steps against Editor and Publisher of Daily Amardesh and Sangram and pass a order to stop publishing those from just now.

Justice Obaidul Hassan: Defense Counsel, have you something to say?

Defense: No, My Lord.

Justice Obaidul Hassan: We were not ready about this matter, so we need 10 minutes time to decide about this matter.

Obaidul Hassan, the new chairman of the tribunal then passed the following order (This is a detailed note of it, but there may be some inaccuracies. The written order is not available.)

We have read main point of today’s skype conversation published in Daily Amardesh and Sangram. After reading we have felt that it is important to give an order about this matter for protecting dignity of Tribunal.

Prosecutor Rana Das Gupta has presented a matter which Tribual have taken cognizance. Over the last some days daily Amardesh and Sangram have published Skype conversation of cx-chairman of ICT BD-1 Nizamul Haque Nasim. We think this Skype conversations are creating wrong perception about Tribunal and its proceeding in the mind of people. To publish private conversation is an offence itself. We think those conversations will obstruct smooth functioning of the Tribunal and hamper the dignity of the Tribunal. So for protecting the dignity of Tribunal and its smooth functioning, all Newspapers specially including Daily Amardesh and Sangram, electronic medias and online newspaper are required, not to publish skype conversation between ex-chairman of ICT BD-1 Justice Nizamul Haque and Ahmed Ziauddin and any transcript, report and article about this conversation, from right now.

Two copies of this order will be supplied by register to Editor of Daily Amardesh and Sangram and also another copy to department of B.T.R.C.

Comment
This seems to be a very wide order indeed, preventing the publication of not not only the transcript of the conversations but also any 'report and article about this conversation'. This appears to prevent any report analysing the conversation.

This would also appear to be a completely unenforceable order - since people are commenting about this on facebook, twitter and elsewhere. The documents are also now available on a number of websites which people can access through simple google searching.

It is completely right that the personal aspects of the skype conversations should not be published, and an order relating to these is perfectly appropriate - but some of the material is very significant and publication seems to be very much in the public interest.

Interestingly, the order does not seem to apply to the hacked e-mail conversations - although apparently the prosecutor has told journalists that it does.

The intellectual killings, 41 years ago

Rayer Bazar, the bodies
found, Dec 1971

It was yesterday, 41 years ago, a few days before the surrender of the Pakistan military, that the first of about a dozen Bangladeshi professionals were abducted in different parts of Dhaka over a period of a few days. A number of bodies were found in Rayer Bazar, just after the war ended. The bodies of others were never found. These abductions became iconic of the wider atrocities that were committed over a period of nine months from March to December, and are a startling reminder of the depravity of the war.

In October 2011, just after the editor and publisher of New Age (for whom I was working at the time) and myself were issued a contempt notice for an article published in New Age, I wrote the following article (which was before any actual trial had started) which is worth reproducing here, both as a reminder of what happened in December 1971 and also because it places the arguments about the importance of fair standards .

--------

David Bergman discusses why those who support an end to impunity and justice for victims of war crimes in Bangladesh should also be seeking high standards of fairness and due process at the trials of the accused 

In the early hours of 11 December 1971, at about 3.30 am, a group of men, including at least one Bengali, knocked on the door of the family house in Mohammadpur, Dhaka of Sirajuddin Hossain, the executive editor of the daily newspaper Ittefaq. One of them asked the journalist his name and position, and after Hossain told them, they took him away. 

At about the same time, a group of armed men came to Naya Paltan and knocked on the doors of the flats rented out by the family of the journalist Ataus Samad. One of the men, a Bengali in civilian dress, asked the tenants in English where Samad lived. Both the tenants told the armed men that he was not in Dhaka but had gone to Kishoreganj to celebrate Eid. 

Ataus Samad had in fact moved out of his house in late November and was then living with his sister in a nearby area. Luckily, therefore, he escaped abduction. But on that very same morning those men had come for him, he remembers hearing screams from a residence neighbouring his sister’s house, and a voice shouting, ‘Save me, Save me.’
He thought it was the sound of his friend Najmul Huq, the chief news reporter of the national news agency, the Pakistan Press International, but he was not sure. The next morning he spoke to the guard at the gate of the house where Huq lived, who confirmed that the journalist had been abducted. Huq’s wife confirms that one of the men who abducted her husband was a Bengali. 

That same morning, armed men also came looking for the journalist Enayetullah Khan -- then editor of Holiday, later to be founding editor of New Age - whose office was then in Naya Paltan (close to Ataus Samad house). A man in the office below told him that some people had broken down a door and beaten a tall young man mercilessly and he heard one of the men say, ‘You are Enayetullah Khan, you must come with us.’ 

Later that morning, at about dusk, armed men turned up at the house where Ghulam Mustafa, a reporter from the newspaper Purbodesh, who was then living in Rayer Bazaar, Dhaka. Mustafa was at that time outside his house walking his baby who could not sleep. The men asked, ‘Are you ANM Gholam Mustafa?’. He said ‘Yes’. Then they said, ‘Leave the baby for a while and come with us. We have to go to the office.’ 

After 16th December 1971, the families of Sirajuddin Hossain, Najmul Huq and Gholam Mustafa desperately tried to find their abducted relatives. Mass graves containing the decomposing bodies of other intellectuals taken in those days were found, but they could not find the bodies of their own loved ones. 

I know about these and other abductions as, along with a group of young Bangladesh journalists and researchers, and a British television team, I spent a good part of 1994 investigating who was responsible for the murder of over a dozen intellectuals in Dhaka in the dying days of the country’s independence war. No one before or since has I think investigated these series of murders at the level of detail that we did. 

The result was an award winning film for British television’s Channel Four called ‘The War Crimes File’. 

Many of you may know this film – as at the time it was shown widely in Bangladesh. Screenings were organised by Projonmo Ekkatorer (Generation 71 – a group comprising family members of those who died in the war) and it was later also broadcast a number of times on Bangladesh Television. Although the film was originally made for an English audience, in order to ensure that it could be seen by more Bangladeshis, a team of us working with M Hamid, the well known television producer, made a Bengali-language version of it, which was widely distributed. 

The central allegation in the film was that one man, a member of the Jamaat-e-Islami’s student wing in 1971, who after the war had moved to London, was involved in a number of these abductions of intellectuals. 

The film also set out evidence to suggest that two other Jamaat-e-Islami members were involved in war crimes in Sylhet. 

After its release, the film became an important tool for those highlighting the crimes that took place in 1971 as well as the need for accountability for those who had committed them. 

Subsequently, I spent quite some time collecting affidavits to defend libel actions taken out against the broadcaster, Channel Four Television, as well as in trying to get the British authorities to take action against the men, one of them in particular. 

All of this is well known to those who have been active in the movement for demanding justice for victims and survivors of war crimes. I am just setting it on record to make it clear that I am quite aware of serious allegations regarding the role of the Jamaat-e-Islami in 1971, the nature of the allegations and that I have been a part of the process of demanding accountability for war crimes in 1971, long forgotten in the west. 

However, I see no contradiction in also being a strong supporter of ensuring that the International Crimes Tribunal set up in March 2010 to prosecute those alleged to have committed international crimes in 1971, is independent, fair and follows acceptable due process standards.

This position of course has been, at least at the level of rhetoric, also the view of the Bangladesh government – and several ministers have repeatedly said that the tribunal will match not just the best national standards, but ‘international standards’. The Tribunal’s Registrar has himself also stated that the tribunal will match ‘universally recognised standards.’ 

For obvious reasons, the need for due process and fairness are requirements for every criminal trial – not just for those accused at the ICT. And whilst the historic nature of the tribunal can easily allow one’s focus to get locked onto the tribunal, it is very important not to forget all the other trials that take place in Bangladesh where just as much may be at stake for both the accused and the victim. 

But, at the same time, there are some additional reasons why the issue of high standards is particularly important to this international crimes tribunal. 

First, appropriate standards can ensure that the evidence alleging that a person committed international crimes forty years ago is considered in a suitable manner. 

As someone who has spent some time investigating war crimes in Bangladesh (at that time around 25 years old evidence) I know first hand that whilst there is collective memory and belief about who is involved in war crimes, it is tough to find direct eye-witness or documentary evidence. Even when you find an eyewitness, there is always the question of whether you can find sufficient corroboration. And then of course there are the inconsistencies that one so often finds between witnesses, when the alleged offence took place so long ago. 

It is not that incriminating evidence cannot be found, but the point is that it is far from straightforward, forty years after the event, to collect evidence that a court can justifiably conclude proves beyond reasonable doubt that a person has committed a crime of genocide or a crime against humanity.

Secondly, fair standards can protect judges from government and societal pressures. Holding war crimes tribunals within the very country where the war crimes took place – particularly when they took place on the scale that they did in 1971 - creates some very particular difficulties. 

There are very strong passions within Bangladesh about the guilt or otherwise of the accused, and there are very clear challenges on the part of the Tribunal to ensure that they are untouched by these. There are also challenges for the judges, who are themselves Bangladeshi, and who may understandably on a personal level have strong views about what took place in 1971, to ensure that these play no part in the Tribunal’s proceedings.
A proper procedural framework with clear protections for the defence will help establish public confidence throughout the country and abroad that this is the case and that the trials are fair. 

Third, a tribunal which deals with ‘international crimes’ has the potential to impact on international processes of accountability for similar crimes beyond Bangladesh. The Bangladesh tribunal is one of the very first national tribunals (i.e not involving any United Nations judges or assistance) involving war crimes taking place and if done right could impact very positively both in terms of case law and on future policy on dealing with war crimes trials. It could set an important trend in the support of establishing national tribunals rather than the very costly UN supported processes. 

Yet, unless the tribunal is seen to reflect understood norms of due process, the very opposite could happen – setting back for a long time the argument that national tribunals can deal with accountability for international crimes that took place in their own jurisdiction. 

Fourth, there is a world of people outside Bangladesh who know little about what happened in 1971. The Tribunal provides a real opportunity for the country to tell the world about the nine months of the war. This history will undoubtedly be picked up to some extent by the international media, but ensuring high standards at the tribunal should mean that focus of the media attention abroad is not focused on allegations of inadequate standards, but on the story of 1971 as reflected, one hopes, in the strong evidence given at the tribunal. 

Fifth, ensuring proper standards takes the wind out of the arguments deployed by the political groups who support the accused, as well as those of their lawyers, who are busy raising criticisms of the tribunal. 

This is particularly significant in this case as all the detained men are members of political parties that are now in the opposition. 

Although it would have been better had their detentions been investigation-led, rather than the other way round, information in the public domain at the time of their detention does suggest that the seven accused men held by the tribunal were appropriate people for the tribunal to have focused its attention. 

Yet, because all the men belong to opposition parties there are the inevitable claims that the government is using the tribunal to settle political scores. The best response to this is to ensure that the trials standards are beyond dispute. 

Finally, high standards are the best way to prevent the Jamaat-e-Islami and the accused supporters from portraying themselves as victims of an unjust process. There is something particularly galling to see the Jamaat-e-islami and the BNP, who are not generally known for their interest in due process and fair trial standards, and who, whilst in government showed no interest in criminal justice reforms, to now be raising this issue so loudly (though of course, this is not to say that the Awami League has been any more consistent on this issue between its period in opposition on the one hand and government on the other.) 

These are, I think convincing arguments why all those who have been campaigning for accountability, for an end to impunity for war crimes, for the tribunal to succeed in bringing to justice perpetrators, and for redress to the survivors, should at the same time be seeking high standards for the Tribunal. There is no contradiction between these two positions. 

This is of course the same perspective taken by the respected international organisations like Human Rights Watch or Amnesty International who are both very strong supporters of accountability for war crimes, but at the same time are earnest at seeking trials that meet relevant standards. 

High standards of fair trial and provision of appropriate protections for the defence should be no threat to those interested in ensuring that the right people are convicted. 

Original article is here 

The ICT chairman's resignation - what next?

The chairman of the International Crimes Tribunal one has resigned. What does this all amount to, and what next for the tribunals?

No choice but to resign .... however 
1. The tribunal chairman probably had no choice but to resign. It would have been difficult for him to have soldiered on after his conversations with Ziauddin Ahmed were laid bare by Amar Desh. Whilst it remains difficult to assess the level of Justice Nassim's impropriety (I would like to first await to see what the Economist says about all the material it has in its hands) one can at the very least say that he should not have been seeking advice about Tribunal orders from someone whom he know was in direct contact with the prosecution.

2. As much as anything else, however, his difficulties in continuing must have been about the personal comments he made about fellow judges as well as other people including ministers. It would have for example been difficult for him to continue on the bench after his comments about Justice Jehangir, with whom he sat on the bench, were made public.

3. It was notable that in Justice Jehangir's comments in court today he appeared, by inference, to personally criticize the tribunal chairman, whilst at the same time failing to criticize Amar Desh for actually publishing the report - only for the paper in using his name in the headline.

Amar Desh
3. Whilst it was arguable that parts of the transcripts were in the public interest to publish (this is of course an issue that deserves more attention than I will give here), it is certainly clear that Amar Desh at the same time published material that was private and personal. This should be strongly criticized.

4. Justice Nassim had a proper expectation of privacy. An offense was committed by the person who hacked into his conversations. Basic media ethics requires that there must be a strong public interest in a newspaper publishing material from hacked private conversations, particularly when they involve a judge dealing with a current case. This is the standard in the UK, at least - and whilst this is not enshrined in the Bangladesh press code (a rather odd document, it has to be said), one would hope that this is an implied standard that newspapers here should comply with. Amar Desh however seems not to have given any consideration to what was in the public interest to publish and what was not - and as a result publishing material that was entirely personal. (Was Nassim's health condition or his ability to use e-mail, relevant to anything?).

5. Also Amar Desh should have taken much greater care before publishing Justice Nassim's or Ziauddin's opinions about different people made - one must remember - in a private conversation. The publication of his comments about another judge for example suggesting that he was corrupt is potentially libelous. Does Amar Desh have any proof to support Nassim's allegation? If not they should should not publish it. Justice Jehangir in court today denied it (see subsequent post).

6. Amar Desh's failure to give any professional consideration in deciding what and what not to publish provides the Bangladesh government additional arguments in its current attempt to foist greater regulation on the media. The last thing the Bangladesh media needs is greater government control - but Amar Desh has unfortunately provided legitimate arguments for the government to push through with this.

Blame the government
7. What comes out of these Amar Desh transcripts more than anything else is the level of interference on the part of the government. The big question is why the state law minister Qamrul Islam, for example, is not resigning?

8. Whilst it was the government that established the war crimes tribunals - a decision that gave hope to the legitimate and important demands for accountability by families whose relatives were killed in the war as well as by so many others  - almost every subsequent decision they have made about the tribunals was wrong. These include:
- appointing prosecutors on the basis of party loyalty, rather than competence. Instead of appointing the best Bangladesh lawyers, they appointed lawyers with relatively minimal ability;
- failing to appoint international lawyers and war crimes investigators to work with the prosecuting and investigation team. This would have immeasurably improved the quality of the evidence obtained and the level of prosecution arguments;
- failing to change the law so that it was more in line with international standards. Standards are not just about providing more rights to the accused, they also help protect justice processes from coming into dispute, the situation we have right now.
- failing to appoint a independent legal advisor of international repute that could transparently assist the tribunal panel of judges in the process of holding these trials;
- failing to allow the tribunal to operate independently, and instead making prejudicial comments about the accused and placing pressure on the tribunal.
- refusing to take advice from the UN and others within Bangladesh who had been pressing the government to make improvements in the way the tribunal operated.

9. A common reprise of the government is to blame the BNP and Jamaat for undermining the tribunals. However, it has been the government which has continuously provided them the ammunition to do this. Had the government, right from the beginning, tried to ensure that these tribunals were of a higher professional standard, then we would not be in the situation that we are now in. Sure, the BNP/Jamaat would still be continuing to criticize the tribunal, but they would not have good reason to do so, and their concerns would not gain any traction or credibility. That cannot be said for the situation now.

What should happen next
10. There is first of all the question about the Sayedee case. One of the existing judges Justice Jehangir Hossain, appointed following the resignation of the Justice Zahir Ahmed, has not heard  any of the prosecution evidence. Justice Anwarul Huq, appointed at the end of March 2012, when Justice ATM Fazle Kabir moved to the second tribunal, had only heard part of the cross examination of one of the prosecution witnesses. And the new judge who will now replace Justice Nassim will not have heard any of the prosecution or defense evidence. Does this mean that there should be a retrial?

11. Section 6(4), (5) and (6) of the International Crimes Tribunal Act 1973 states the following

(4) If any member of a Tribunal dies or is, due to illness or any other reason, unable to continue to perform his functions, the Government may, by notification in the official Gazette, declare the office of such member to be vacant and appoint thereto another person qualified to hold the office.
(5) If, in the course of a trial, any one of the members of a Tribunal is, for any reason, unable to attend any sitting thereof, the trial may continue before the other members.
(6) A Tribunal shall not, merely by reason of any change in its membership or the absence of any member thereof from any sitting, be bound to recall and re-hear any witness who has already given any evidence and may act on the evidence already given or produced before it.

12. This would appear, technically, to cover the situation that the tribunal is in. However, it is difficult to imagine that the Act could ever have envisioned a situation in which the tribunal is now in - where one of the judges has heard no evidence, another judge has not heard any of the prosecution evidence, and a third judge has heard a very small part of the prosecution evidence.

13. It may well be the case that the tribunal/prosecution will also point to the practice in Bangladesh which allows judges to take over  criminal proceedings and to make judgements on the basis of the recorded evidence alone. This is set out in section 349A (1) of the Code of Criminal Procedure which states:

Whenever any Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge, after having heard and recorded the whole or any part of the evidence in a trial, ceases to exercise jurisdiction therein, and is succeeded by another Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge, as the case may be, who has and who exercises such jurisdiction, the Judge so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself; or he may re-summon the witnesses and recommence the trial: 

Provided that if the succeeding Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge, as the case may be, is of opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice, he may re-summon any such witness, and after such further examination, cross-examination and re-examination, if any, as he may permit, the witness shall be discharged.

Whilst the CrPC is specifically excluded from application to the tribunal  and in fact only applies to 'Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge', it may well be cited as national practice that can be applied here

12. If the tribunal accepted this position - that is to say that these three judges could give a judgment on the Sayedee case without hearing the evidence again - this would make the decision of the court particularly controversial. This would be the case particularly in the context of being a war crimes trial, with the possibility of a death sentence at the end of it.

13. Arguably, it would not serve the interests of anyone if the first decision of this tribunal arises from such circumstances, set out above. In addition to this problem, there are a number of due process failures evident in the manner in which the Sayedee case has proceeded. A retrial of the Sayedee case may be the best option available in such a situation to ensure credibility to the process.

14. The defense will also no doubt argue that the disclosures cast doubt on the other cases dealt with in Tribunal one - Golam Azam, Motiur Rahman Nizami, Salauddin Quader Chowdhury. It is too soon to determine whether or not this is the case. However, every crisis creates an opportunity. And in this crisis, there is an opportunity for the tribunals and the government to see how their processes and operations can be improved. This does not just relate to Tribunal one. In Tribunal two for example, the defense in one case have only been allowed to bring six witnesses to the court - half as many as the prosecution. These kinds of decisions by the tribunal, which cut across the due process requirements of allowing the defense to be able to present its case in court, could be reviewed.

The new judge
14. The defense may think the removal of Justice Nassim as a success - but it is possible that the government appoints a judge that is less independent minded than him.

15. For the sake of the credibility of the tribunal, the government must be persuaded to appoint a judge who is widely recognized as particularly competent and independent minded.

The objective
16. One must not lose sight of the objective of these tribunals. It is to hold trials that allow for accountably of those who are alleged to have committed war crimes in 1971. This is a principled objective and even those who raise issues about the tribunal must not lose sight of that legitimate purpose. For those like me who support accountability for 1971 crimes, criticism needs to lead to improvement and reform. Not impunity.

'My name is only Jehangir Hossain ... I am honest'

Today, Tuesday 11 December 2012, the Tribunal sat in the afternoon. The chairman of the tribunal, Justice Nassim was not present (it took place a few hours before he resigned). Only two judges sat.

Journalists were present to hear the court pass an order following an application by the prosecutor Haider Ali to take action against the newspaper Amar Desh that had published private conversations between the Tribunal chairman and a Belgium Based law academic, Ziauddin Ahmed. These are assumed to be the same conversations that are in the hands of the Economist magazine which in an article last week described them as raising serious concerns about the workings of the tribunal.

No order was given, but Justice Jehangir made a personal statement in court (see comments at bottom). these were in response to a section of the conversations published in Amar Desh where the chairman criticized Justice Jehangir for being 'corrupt', and also referring to him using an unflattering nickname.

He spoke in Bangla. Below is a translation of what he said, though there may be some omissions.

Haider Ali presented the news in front of us and he is not here today, and since we have a fee more queries to ask him and would be better if he was here since he placed here. Frankly let me make a few words here. What has been published there is something about me too, and it is very difficult to speak about them. Now what seems to me is that no one has a clear impression about who I am. I believe before speaking or writing about anyone they should know first about the person who they are speaking about. Also this is so dictated by our religion, Islam says that should not speak ill about anyone without knowing the exact details, but this is what so called wise people seem to like to do these days.
In my private life I have come here through a strong struggle and I understand that it will be so. My path has not been easy and still it will be difficult even in future. 

I have never tried to gain any benefits from my political acquaintances. I have never behaved badly with anyone in my professional life, but when people say lies about me, 100% lies about me, sometimes I came a bit perplexed, but I am never frustrated, because a lie is a lie and the truth will come out sooner or later. I have been given the responsibility of a great job, it is a huge responsibility and I am grateful to Allah and also to journalists who have recorded my cases when I used to be a lawyer in the high court and this much focus on my reports has never really gone down well with those who speak ill of me.  

Whatever I have been I have been honest. I am honest and will for the test of my life be honest 

The Amar Desh's editor Anti Corruption Case  had come to my court when I was a second judge in the High Court and if I had reached a decision that was beyond my oath my judgement it would have been different. My judgement would not have been in favor of his appeal for a  stay order, but I still gave it to him. 

The only thing I can say, he could have printed the material without such a big head line with my name in. He could have done with me in such a big headline. That is all I will say about it 

I want to say something here I wasn't putting ash on the mouth of people who speak ill of others.  My name is Jehangir Hossain, my certificate says Jehangir Hossain, when I was appointed it was Justice Jehangir Hossain and only Jehangir Hossain.

Since the chairman is ill today we believe he should give the order, and since we do not know whether he will come tomorrow, so we fix the date the day after tomorrow.

Comments
1. It is effectively a rebuke to the chairman.

2. It is interesting to note that he did not criticize the newspaper for publishing the article, only for printing his name in the headline.

Defence lawyers seeks ICT chairman resignation

For the purposes of comprehensiveness (and not because this blog supports its contents) posted below is the statement of Barrister Abdur Razzaq, the head of the ICT defense team given at the Bar Council premises on Monday, December 10th. Another statement was given by the vice-president of the Bar Council and this statement will be placed on this page later.

This statement was made the day before Justice Nassim resigned

Statement of the Defence in view of the revelations made in the Economist and Daily Amar Desh.

On 9 December, 2012, at about 12.15 in the morning (BST) the Economist published a report in its “Banyan” section stating that it had in its possession 17 hours of Skype conversations between the Chairman of the Tribunal-1 and Dr. Ahmed Ziauddin (a campaigner for the present trials) together with 230 emails. The Economist commented that these if genuine, would raise questions about the workings of the Tribunal.

On the same day the Daily Amar Desh published a selection of the Skype conversations. These conversations contain statements which damage the integrity of the Tribunal and include the following:-

1. The Chairman is discussing the contents and fate of the case with an outsider and taking extensive assistance from him.

2. The Chairman is telling Dr Ziauddin that the Government needs a judgment by December, 2012 and that he can prepare Allama Delwar Hossain Sayedee’s judgment by such date;

3. Dr. Ziauddin is drafting a rough sketch and structure of the Judgment for the Tribunal in the case against Allama Delwar Hossain Sayedee even before commencement of arguments.

4. The Chairman deciding with Dr. Ziauddin the order in which the cases should be disposed of.

5. The Chairman terming his brother Judge as having been corrupt and referring to him by a derogatory nickname.

Today, the Amar Desh published further conversations in which the Chairman and Prosecution is reported to have engaged in mock displays of arguments between them to give the impression that he does not favour the Prosecution. Dr Ziauddin is also reported to have been assisting both the Prosecution and the Chairman. Audio versions of the Skype conversations are now widely available in the internet.

The reported conversations have serious implications for the on-going trials. So far we have no reason to believe that the Skype conversations are fabricated. We are fortified in this belief, by the statements of the State Minister of Law to the BBC yesterday in which he admitted the conversations. Moreover, Dr. Ziauddin declined to comment to the BBC. The Tribunal and the Prosecution are not making any comments on the authenticity of the conversations despite their serious nature. Most revealing is the admission by the Tribunal-1 in its Order dated 6 December that such conversations indeed took place.

The above disclosures made on 9 and 10 December have seriously undermined the integrity of the entire trial process. We doubt whether the process will ever regain its credibility. The only honourable option open for the Chairman is for him to resign. This will not only be in the interests of the trial but also of the Judiciary, whom we believe he has single-handedly undermined.

Bangladesh war crimes tribunal chairman resigns

Bangladesh state minister for law, Advocate Muhammad Qamrul Islam has confirmed that the International Crimes Tribunal 1 chairman, Justice Nizamul Huq has resigned.

'He tendered his resignation at 5pm to the Secretary to the Law Ministry. He said it was for personal reasons.' 

When he was asked whether it was to do with the Economist revelations, he said:

'I don’t know what is the actual ground. Any other ground he did not express.'

When asked what will happen now to the tribunal, he said:

'We are appointing a new chairman within tomorrow or day after.

When asked whether there was a problem with the Sayedee case continuing since no judge has heard the whole case, he said:

The Sayedee case will continue. There is no problem' 

For the last three days the Bangladesh newspaper has published transcripts of the Skype conversations which the chairman had with the Bangladesh original Brussels based law academic Ziauddin Ahmed.

More to come .......

Who hacked the ICT chairman's computer?

When the UK Guardian and other newspapers first published the wikileaks material on the US embassy cables, attention was not just focused on their extraordinary content, but also on how wikileaks got the cables in the first place.

And as we all now know Bradley Manning is now detained by US authorities.

The International Crimes Tribunal recordings/e-mails are obviously not of the same import as the Wikileaks cables (though not without some significance of course in Bangladesh, and to the war crimes trials in particular). In addition, the Economist has not even yet published substantively on their content (though a Bangladesh newspaper has published transcripts of some material).

However, it is necessary to ask some questions about how confidential personal communications between a judge and a legal academic could have been recorded/hacked and how this information got in the hands of the Economist.

Of course, ones view about the person(s) responsible for the recording (as with one opinions about Bradley Manning) depends where your sympathies lie; if you are a keen supporter of the tribunals, the 'hacker' may be viewed simply as a criminal who has intercepted private communications of a sitting judge in gross contempt of court. But, for critics of the tribunal, this person may well be seen as a hero who has exposed something in the greater public interest

Here are ten initial points.

1. Security experts tend to claim that whilst e-mail communications are relatively easy to hack, Skype conversations are not. Moreover Skype conversations are not archived on either of the computers involved in the conversation, so that they any recording had to be made at the time when they were made.

2.  So in relation to the Skype calls, it appears there are the following options: (a) one/both of the computers used by the chairman and Ziauddin contained software that allowed Skype conversations to be recorded when they took place; (b) the rooms where the skype conversations occurred were bugged; (c) someone else in the room where the conversations took place was recording them.

3.  It is possible that the person responsible for the recording could well be someone trusted by the ICT chairman or Ziauddin; however it is equally possible that something more audacious has been undertaken involving more sophisticated bugging or hacking.

4. The Economist says that it did not procure or pay for this material; that the information was given to them. This must be taken at face value.

5. The person who hacked may well be different from the person who gave the information to the Economist. So the 'hacker' could have given/sold the material to a third party, who then gave it to the Economist.

6. The Economist was surely not the source for the Bangladesh newspaper Amar Desh receiving the material. There is no way that the Economist would have shared its scoop with any other media outlet, yet alone a Bangladesh one. So either the 'hacker' or a third party is the source of the information to Amar Desh.

7. What role have the defense lawyers in all this? Clearly, the 'hacking' and the material obtained very much serves their interests. Though that does not mean that they necessarily were involved in all this - at the same time it is difficult to believe that this all came as a total surprise to them. At the very least, it is reasonable to assume the material flowed through them in some way before it got into the hands of the Economist. And perhaps they were more deeply involved. They have made no comment on this aspect so far.

8. I have asked the defense lawyers a series of questions on their role if any in the 'hacking' and in providing information to the Economist, and have been told that they will respond to the queries at a later stage after the publication of the Economist article. The questions that I have asked are as follows:

- Can you comment on whether any member of the ICT defense team in Bangladesh was responsible for recording/hacking the e-mails/skype calls relating to conversations/ messages of the ICT chairman currently in the hands of the Economist? 

- If not, can you comment on whether any other member of the ICT defense team in Bangladesh knows how the material was hacked/recorded? 

- Can you comment on whether, prior to 4 December, any member of the ICT defense team in Bangladesh saw any of the material that is in the hands of the economist and if so how did that came about? 

- Can you comment on whether any member of the local or international defense team had any role in bringing the material to the attention the Economist, and if so in what way?

9. Whilst the defense may have much to gain by the publication of this material, there are at the same time significant risks. The focus could move from the content of what was recorded, onto what involvement, if any, they had in the obtaining of the confidential material.

10. The person who hacked/recorded the conversations/e-mails will likely to have committed a criminal offense under Bangladesh law as will anyone who procured the offense. Without pre-judging the situation, there are legitimate questions to be asked of the defense legal team about their involvement in all this. As lawyers, they also have a higher set of professional standards to follow which include particular responsibilities towards the tribunal.

See other posts relating to Economist story
Ziauddin Ahmed: No comment
Comment from Toby Cadman on Economist Story
Has the Economist blinked?
Bangladesh Civil Society Establishment: will the trial process continue to have its support
Would Economist publication of tribunal e-mails be in breach of Editors code
Tribunal accuses Economist over e-mail hacking

Ziauddin Ahmed: 'No Comment'

Ziauddin Ahmed, the Brussel's based international lawyer with whom the Tribunal Chairman has acknowledged in a recent court order that he has been in contact with over Skype concerning matters relating to the International Crimes Tribunal has said that he will not make any comment about the matter until it is dealt with by the Tribunal.

In a e-mail statement, he said:

'I cannot discuss anything at this stage since the matter is under consideration of the ICT and as such, sub-judice. Thank you for your understanding.'

When asked whether he was 'able to comment [on] whether or not the transcripts published this morning in Amar Desh are correct?' he said:

'I think until its resolved by the ICT I cannot make any comment. Hope you will understand.' 

His statement comes as yet another day passes without any substantive article from The Economist about the material that it has said that it is currently investigating.

In the meantime, Amar Desh has published a long transcript of a number of conversations (amounting to over 22,000 words) between the ICT chairman and Ziauddin. In addition a number of the audio tapes of these conversation are available on u-tube, and links are circulating to these.

Many are expecting that this material would be published on this blog, but it will not be at the moment for the following reasons.
- these are illegally obtained confidential material and journalistic ethics requires considerable thought before simply publishing them;
- the Economist - as far as one can guess from its recent article - is currently going through a rigorous analysis of whether the information disclosed by them is sufficiently in the public interest to merit  publication in their magazine. It seems appropriate, therefore first to wait and see what The Economist publishes;
- and, finally their publication may make me vulnerable to legal action in Bangladesh.

Once the Economist has published an article, assuming it does so - and it has given its consideration to public interest issues - this blog will consider undertaking its own analysis of what the impact of the revelations might mean for the tribunal.

Comment from Toby Cadman on Economist article

I just managed to get this quote from Toby Cadman, who is a British barrister that is involved in assisting all of the Jamaat leaders accused of international crimes, in response to today's Economist article

"I find the whole situation rather disturbing. If it is established that there was an improper relationship between the Chairman and Dr. Ziauddin Ahmed then that is worrying as it may impact on the entirety of the proceedings. Without wishing to prejudge the proper response that will have to be taken, it is my view that this necessitates a fully independent and impartial inquiry on the international level. The United Nations must be called upon to fully engage on this issue as a matter of urgency."

Has the Economist blinked?

So we now know a little bit more about what material the Economist has, though not much
[but see end of this post re Amar Desh]

The Economist has 17 hours of recorded material and over 230 e-mails between the the chairman of the international crimes tribunal and the Bangladesh legal academic, Ahmed Ziauddin.

In its article, the Economist makes the point that:

'This material is confidential and we are bound by law and the British press’s code of conduct not to reveal such information except in matters of the most serious public interest. We did not solicit the material, nor pay for it, nor commit ourselves to publish it.'

So, this confirms, as suggested by the Tribunal's order, that the material was illegally intercepted or recorded - that it is confidential - but it was not procured by the Economist. It was given to it. The article gives no indication who gave them the material or who illegally obtained it. Clearly this is a very serious issue indeed, entirely separate from the question about whether or not publication is justified.

As to what the material actually says, the Economist simply says that it:

'would indeed raise questions about the workings of the court'

It appears that the Economist does intends to publish, if their lawyers give them the green light. It says:

'Our investigations are continuing. Once they are concluded and if we consider the allegations contained in them to have merit, we will publish them.'

The article provides a little bit of color to Mr Ahmed and his relationship with the tribunal chairman.

'Mr Ahmed is an expatriate Bangladeshi who is an academic specialising in international law who lives in Brussels. The two men have known each other for 25 years, as they were human-rights campaigners and Mr Ahmed’s late brother had been a student friend of the judge. Mr Ahmed is not just an international lawyer, he is also the director of the Bangladesh Centre for Genocide Studies in Belgium, which is dedicated to ending what he has called “the ingrained culture of impunity” surrounding the war crimes in Bangladesh.'

The article ends on suggesting a discrepancy between what the tribunal chairman said in his order and what he said to the Economist on the phone. On the phone on Tuesday 4th December to the Economist, the chairman is said to have stated:

“As judges, we cannot take help from third person and outsiders,” Mr Huq said. Asked whether they sometimes exchange e-mails about the tribunal, he says “No, no, no, regarding tribunal, no talks regarding the judgment or regarding the proceedings, no.” “Later, he said, “A Supreme Court judge, we do not talk even with our wife regarding the tribunal.”

But, as the article says, the chairman's order on Thursday 6th states:

The order refers to the presiding judge of the tribunal “receiving the support [of Mr Ahmed] on the developments on International Criminal law throughout the world” and taking assistance “during the proceedings of the trial and orders”.

The other issue, the Economist raises is transparency:

On what bases did the judge select the experts who would help him? Why was Mr Ahmed’s role not revealed to the court and to the public until the tribunal order on 6th December, after we had contacted hi

I think we can assume that whether or not anything more gets published depends on the Economist's lawyers, who must be combing every word and comma. The publication of the private correspondence of a sitting judge just days before he is involved in a decision on the guilt or innocence of a person, is a matter of the utmost seriousness, and if the Economist does not get it right - and if publication does not serve, as they put it, 'the most serious public interest', the magazine will be in serious trouble indeed.

There is of course a bit of an interesting history between the Economist and the Bangladesh government There are many in the government, and amongst its supporters, who think that the Economist has it in for the Awami League government. This is principally because of an article which claimed that the Awami League government won the last elections with 'bags of Indian cash and advice' (without putting forward any evidence). It has also been consistently critical of the war crimes trials. For some this shows some kind of motivated intention, rather than critical journalism. Interestingly though, for those who with to see malice within the Economist, the magazine recently did a number of positive articles and videos on the progress of Bangladesh in achieving a number of development goals.

However, it may well be because of the Economist's consistently critical position about the international crimes tribunal from early on, that it was chosen as the berth for this illegally obtained material (in fact it is the only major international publication that has followed the tribunal at all really, with all other media effectively ignoring it).

Otherwise, the Economist is an odd choice - since it does not generally do investigative journalism as such, and has less experience than other major publications like the Guardian or New York Times in breaking stories like this.

[Having written this, just heard that pro BNP paper Amar Desh has published further details about what is supposedly in the intercepted material. I myself would rather wait for the Economist myself - but when I get a translation will post it up, if it appears reliable/appropriate]