The UK police's failure to investigate 1971 war crimes 20 years ago

Chowdhury Mueen Uddin with Prince Charles

The Jewish Chronicle and the Spectator have written two articles critical of how the British government, and others groups within the UK have allowed themselves to dialogue with 'Islamists who dominate Muslim institutions in the UK.'

These articles were written in light of the conviction in Bangladesh last week of British citizen, Chowdhury Mueen Uddin for crimes relating to his alleged masterminding the abduction of 18 'intellectuals' in the final days of the country's independence war in 1971. (Here is a copy of the judgment)

He was given the death penalty.

As written elsewhere, Mueen Uddin and his lawyers have strongly attacked the tribunal that prosecuted him - and, unfortunately, with some legitimacy.

Whilst the questions suggested by the Spectator and the Jewish Chronicle may be interesting to ask, there is is a far more significant concern that requires consideration, and maybe even investigation.

This relates to a point that Martin Bright makes in his JC article. In response to Mueen Uddin's assertions of innocence and also his stated willingness to be tried in another forum, Bright asked whether one should:

"... allow this country’s legal system to deal with the allegations against Mr Mueen-Uddin. Scotland Yard investigated the case in the 1990s after a Channel 4 documentary brought the allegations to light and the police should look again at whether there is enough evidence to bring him to trial in the UK."

This extract suggest that Mueen Uddin's conduct in 1971 was investigated by the British police 20 years ago in 1995 when they were first brought to its attention by the Channel 4 documentary.

However that was not the case.

A file of evidence was indeed sent to Scotland Yard - but the police never 'investigated' the allegations. It decided that it need not look any further as its lawyers advised it that 'primary jurisdiction' over such a case was with the Bangladesh government, and - that being so - the police sent the file to the Bangladesh High Commission.

It is this UK police decision which needs to be subject to a great deal of criticism.

This is because international lawyers will tell you that there is no concept in international law of 'primary jurisdiction'. Whilst it may be true that the normal preferred position is for a war criminal to be prosecuted where the crimes took place - and in that sense Bangladesh has primary jurisdiction - if Bangladesh is not going to prosecute and the United Kingdom is not going to extradite then the United Kingdom should take action itself

It is arguably the failure of the British police to take the allegations against him seriously in 1995 that is the reason why Mueen Uddin will most likely never have to face a court of law (having been tried in absentia in Bangladesh, and will not be extradited to face the death penalty.)

In 1995, although even then 24 years had passed since the alleged crimes, a significant amount of evidence was available. This not only comprised the evidence that was collected for the film itself, but other evidence collected subsequently - in part facilitated by the libel case which Mueen Uddin initiated against Channel Four.

A large amount of evidence was collected in the form affidavits or signed statements. As part of its preperations in defending the libel action, Channel Four lawyers also filmed interviews with the witnesses reading out their statements. This was all available then.

In the 20 years since, however, many crucial witnesses have now died. Also some evidence has been lost.

The point is whilst evidence does continue to exist concerning Mueen Uddins's involvement in 1971 crimes (and the police should certainly be looking at what is currently available) the evidence in 1995 was that much stronger than it is now, and the question is: why was it not properly scrutinised and assessed at that time, and if necessary further investigations carried out?

As mentioned above the view of Scotland Yard that it lacked 'primary jurisdiction' was very questionable. It is a great pity it was not legally challenged properly at the time.

The British police could certainly have investigated  these offenses, and if there was sufficeint evidence prosecute in the UK courts, particularly as it should have been very clear that there was no appetite for prosecuting these offences in Bangladesh at that time.

The failure of the police to investigate Mueen Uddin in 1996 is arguably a matter of some negligence on its part - and may well have allowed a person, against whom serious allegations lie - to escape justice.

Mueen Uddin's strategy of deflection

In August 2011, I wrote in New Age:

'The government needs to recognise that many of the criticisms that people make of the tribunal is not ‘propaganda’—and in many cases it comes from people who are very keen for the tribunal to succeed. Yet, unless significant changes are made to the law and the tribunal’s operation, it is quite predictable—though unfortunate—that the criticisms will get even more shrill.'

And a few months later in October 2011, I again wrote in the same paper:

'With the tribunal now assessing evidence and considering defence applications about the nature of the offences, it must be at the top of its game. At the moment, however, there is a serious risk of the tribunal providing additional reasons for the defence to argue that they are being subject to an unfair trial.'

It was not just me of course, there were others within Bangladesh and outside (Human Rights Watch and the US Steven Rapp, Ambassador-at-Large, heading the Office of Global Criminal Justice in the U.S. Department of States) making the same point - that failure to make changes in the operation of the tribunal, would make the trials easy targets for those who wished to discredit the process.

It was in fact entirely predictable to anyone who cared to look independently at the process, even before the trials themselves had formally started, that the International Crimes tribunal appeared to be going down a wrong track, and could well provide legitimate reasons for the accused and the Jamaat-e-Islami to question the credibility of the trials. 

Of course one was not to know how far-reaching the concerns about the trials would become.

The supporters of the tribunal and in particular those in the government who had the opportunity to put the tribunal back on track - by ensuring tribunal independence, making changes to the law and procedures, and employing a much more professional set of investigators and prosecutors, including  international experts (something I had called for early on) - are now reaping the effects of failing to have done this.

This is no more evident than in the response of Chowdhury Mueen Uddin to his conviction and death sentence for crimes during the 1971 war. 

His trial was an in absentia trial (without the government having even sought his extradition from the UK) so it was of course an easy target for Mueen Uddin to criticize. However, the statement issued by Chowdhury Mueen Uddin following his conviction and death sentence is an attack on the whole trial process:

'The defence team believes the tribunal has been characterised by widespread judicial and prosecutorial misconduct. They continue to cite clear evidence of witness tampering, witness perjury, governmental interference and collusion. .....

Commenting Toby Cadman, the defendant’s Legal Counsel, said:
‘The trial process has been shown to be nothing short of a political show trial.

‘What is clear from a number of damning disclosures by the international community and the media is the overwhelming evidence that reveals serious judicial and prosecutorial misconduct and the collusion of the Government with members of the judiciary and prosecution.

‘I am not at all surprised by the verdict that has been passed today by an institution that has lost all credibility. We reject each and every charge leveled against Mr. Mueen-Uddin. This is coming from a body that has been accused of gross irregularity and misconduct by human rights groups, notable figures and institutions around the world.

‘The system in Bangladesh is so far below even the minimum standards of fairness that it does not deserve to be called a judicial process. It is not an international tribunal. There is nothing remotely international about its practice. There are also serious questions raised as to whether it constitutes a national judicial institution, as it sits outside of the law – seemingly in a black hole. It has become a travesty of justice that is writing a very dark chapter in Bangladesh’s short history.’ 

‘Mr. Mueen-Uddin has consistently maintained that he is prepared to stand trial and establish his innocence before a court of law that is fully independent and impartial. There is a wealth of authority to suggest that the trial conducted before the Tribunal constitutes a flagrant denial of justice. 

Of course, Mueen Uddin does amongst all of this criticism of the tribunal, plead his innocence, but the vast majority of the statement is an attack on the tribunal process. And whilst calling the trial process a "political show trial" and saying that the tribunal "sits outside the law - seemingly in a black hole" are hyperbole, at the same time many of the criticisms are unfortunately justified.

As someone who knows an awful lot about the evidence against Chowdhury Mueen Uddin, and does believes that the evidence of his involvement in these abductions is substantial and compelling, I am extremely troubled by how he is so easily able to deflect the questions away from the evidence against him and onto the criticisms about the tribunal. 

And responsibility for this sits just about entirely with the present government of Bangladesh, who - extraordinarily argued - and indeed still now continue to argue - that the tribunals meet international and national standards, and in fact even surpassed them, and failed to make the changes necessary.

And responsibility for providing propoganda opportunities to the Jamaat-e-Islami and the accused  also rests in part upon the shoulders of the "tribunal supporters" who ignored the concerns, turned a blind eye to what was going on at the trials and even, in some cases, verbally attacked those who made the criticisms.