Ambassador Rapp: Why Chowdhury should not be executed

Former US Ambassador at Large for Global Justice

For six years, until three months ago, the international crimes prosecutor Stephen Rapp was the US government's Ambassador at Large leading the Office of Global Criminal Justice in the U.S. State Department.

He visited Bangladesh a number of times in relation to the International Crimes Tribunal where he has given a number of press conferences and statements, which this blog has covered (see here for seven previous posts on Rapp).

He has now given a statement relating in particular to the trial of Salahuddin Quader Chowdhury, but also that of Ali Hasan Mohammed Mujahid, both of whose applications to the appellate division -  requesting that they reverse their previous decisions which had uphold the sentence of death - were turned down on Wednesday.

Over the last month there have been quite a number of statements issued on behalf of Chowdhury from UK and US politicians which this blog has not covered. This statement by Ambassador Rapp is different. It is an analytical and well argued critique of the trial against Chowdhury - and against the decision of Bangladesh's justice system to execute him. It does not cover all the issues, but it does cover the major one about lack of witnesses (see also here for more detailed analysis on witness restrictions)

This statement will not change anything. But those supporting the execution who still have an open mind should read it.  It is set out below, and the original statement can be downloaded here.

Statement of Former U.S. Ambassador-at-Large
Stephen Rapp
_______________________________________________________________________

I served as Ambassador-at-Large leading the Office of Global Criminal Justice in the U.S. State Department for six years from September 2009 to August 2015. During my tenure, I was honored to be received in Bangladesh at the invitation of its government to provide advice regarding the process for holding trials of those alleged to be responsible for major atrocities committed during the 1971 Liberation War. I made five trips to Dhaka, in January 2011, May 2011, November 2011, May 2013, and August 2014, and also communicated with key participants between my visits. 

Throughout my engagement, my first interest has been to achieve justice for the victims and survivors through trials and appeals that would establish the undisputable truth and hold the major surviving perpetrators to account. For such a process to stand the test of time, I urged that the judicial proceedings of the International Crimes Tribunal respect the highest legal standards. 

It saddens me to say that I do not believe that was done in the cases of Salauddin Qader Chowdhury and Ahsan Mohammad Mujahid. Under the provisions of international law that Bangladesh has bound itself to uphold, the imposition of sentences of death in these cases is not justified, and I would urge the government to commute the death sentences in the interests of justice. 

I have looked most closely at the Chowdhury case, but note that the Mujahid case followed the similar procedures that did not give the defense the same opportunities to obtain and present evidence as the prosecution. It is particularly disturbing that Chowdhury was denied the right to call alibi witnesses, including a former U.S. Ambassador during the Clinton administration, to provide testimony that he was not present in Bangladesh at the time the alleged crimes were committed. 

Bangladesh is a party to the International Covenant on Civil and Political Rights (“ICCPR”). The ICCPR affords the accused the right “to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her.” The right of the accused to present witnesses – especially alibi witnesses – has also been recognized in other international crimes tribunals. In a case that I personally prosecuted at the International Criminal Tribunal for Rwanda, the Appeals Chamber held that “[T]he concept of a fair trial includes equal opportunity to present one’s case and the fundamental right that criminal proceedings should be adversarial in nature, with both prosecution and accused having the opportunity to have knowledge of and comment on the observations filed or evidence adduced by either party.” Prosecutor v. Nahimana, ICTR-99-52-A, at ¶ 181 (Nov. 28, 2007). 

The European Court of Human Rights has likewise ruled that Russia’s “refusal to examine the defense [alibi] witnesses without any regard to the relevance of their statements led to a limitation of the defense rights incompatible with the guarantees of a fair trial enshrined in Article 6 [of the European Convention on Human Rights].” Popov v. Russia, no. 26853/04, at ¶ 188 (July 13, 2006). 

Standards of procedural protections are even higher in death penalty cases. Article 6 of ICCPR establishes additional safeguards prior to the imposition of a death sentence. The Human Rights Committee has held that these standards should be met even during a state of emergency since “article 6 of the Covenant is non-derogable in its entirety, any trial leading to the imposition of the death penalty […] must conform to the provisions of the Covenant, including all the requirements of article 14” of the ICCPR. 

Mr. Chowdhury was convicted and sentenced to die by the Tribunal on October 1, 2013. This judgment was appealed to the Appellate Division of the Supreme Court of Bangladesh (“Appellate Division”), which affirmed the sentence and conviction of the Tribunal. 

The alleged conduct that led to Mr. Chowdhury’s conviction and sentence occurred on April 13, 1971, and April 17, 1971. Six alibi witnesses, however, who live outside of Bangladesh have been denied the opportunity to testify in person or through affidavit that Chowdhury was in Pakistan in April of 1971. Muhammed Osman Siddique, a former U.S. Ambassador, would have testified that he left Bangladesh for Pakistan on the same flight with Chowdhury on March 26, 1971. Siddique and the other witnesses will testify that Chowdhury lived in Karachi, Pakistan, until the second or third week of April when he moved to Lahore, Pakistan, to study at Punjab University. They will testify that Chowdhury did not return to Bangladesh until October of 1971 – months after the crimes occurred for which he was sentenced to death. 

Despite allowing the Prosecutor to call 41 witnesses, the Tribunal restricted Chowdhury’s defense to four witnesses. Prosecutor v. Chowdhury, ICT-BD -2 of 2011 (Order: June 13, 2013). The Tribunal also refused to consider affidavits from the excluded witnesses because they were allegedly submitted without sufficient notice to the Prosecutor – a fact disputed by Chowdhury. CT-BD 02 of 2011, at 150 (Opinion: Oct. 1, 2013).
The Appellate Division also rejected affidavits and live testimony from the witnesses. Appeal No. 122 of 2013, at 133-155. It first concluded that the proposed affidavits had been fraudulently “manufactured” by Chowdhury’s former attorney. Id. at 142. It next objected that the affidavits were not properly authenticated, do not contain statements verifying the truth of each affidavit, and were not stamped properly. Id. at 133-150. According to the defense team, Chowdhury attempted to notify the authorities, authenticate the statements, and stamp the affidavits, but the authorities refused. 

On November 2, 2015, the Supreme Court again denied Chowdhury’s petition to consider the testimony of his alibi witnesses. On November 18, 2015, the Supreme Court fully denied his review petition and also refused to admit Chowdhury’s university transcripts, which corroborate that he was in Pakistan. 

The Chowdhury defense has provided details of the expected testimony of the alibi witnesses. Of course, if their testimony were allowed, there would be an opportunity to the prosecution to cross-examine them, and for the judges to determine their credibility. But that process was not permitted, so what we have are summaries from the defense that the witnesses would have testified as follows. Muhammed Osman Siddique, who was a classmate of Chowdhury’s and later a US Ambassador to several Pacific nations, would have testified that Chowdhury left Bangladesh in March of 1971 on the same flight as him and that Chowdhury was not politically active during his time as a student in Dhaka, Bangladesh. Amber Haroon Saigol, publisher of the Dawn newspaper group, would have testified that Chowdhury stayed with her family for three weeks in Karachi, Pakistan, in March and April of 1971. Muneeb Arjmand Khan, a businessman, would have testified that Chowdhury left Bangladesh in March of 1971 for Karachi, Pakistan. Ishaq Khan Khakwani, a Pakistani politician, would have testified that Chowdhury arrived in Pakistan in March 1971, moved from Karachi to Lahore in April 1971, and lived with his family in Pakistan from April to October of 1971. Mohammedmian Soomro, formerly the Interim President of the Government of Pakistan, Care Taker Prime Minister, Governor and Chief Executive of the Sindh Province and Chairman of the Senate, would have testified that Chowdhury moved from Karachi to Lahore, Pakistan, to study at Punjab University in April of 1971. Reaz Ahmed Noon, a classmate of Chowdhury at Punjab University, would have testified that Chowdhury lived in Lahore during the summer of 1971 and traveled to London in October of 1971. 

The Chowdhury case is not the only case from the International Crimes Tribunal to feature procedural irregularities. The trial of Ahsan Mohammad Mujahid and others also saw similar deficiencies. Under these circumstances, I call upon the Government of Bangladesh to commute the sentences of both individuals, and immediately place a moratorium on the imposition of death sentences until there is full compliance with international law.