Sunday, September 4, 2016

Ten new false and defamatory claims by 'Benjamin Carver' of ABCnewsreportsnow

In April, I was  accused of receiving £50,000 from the opposition BNP (for writing about the journalist Shafique Rahman); in early August, it was claimed that I was receiving Tk35 crore (around £3.5 million) to free Hasnat Karim and Tahmid Khan, illegally detained by the state after the Holey Artisan Bakery attack, and then just a few days ago I was again accused of receiving Tk65 crore (around £6.5 million) from the Jamaat-e-Islami (for my writing on the International Crimes Tribunal).

They are all fictions – totally defamatory allegations without any basis in fact. Completely made up.

They show, the extraordinary lengths to which certain people will go to traduce a person’s reputation in an apparent attempt to stop them writing.

I have responded to the first two (see links above) and now it is to the most recent fiction published by that I am forced to turn my attention.

Whilst responding to this article may well be giving the claims and allegations far more dignity that they deserve, this defamatory report has been widely shared on social media so it is important to rebut the worst of the lies.

The article is authored by a 'Benjamin Carver', almost certainly a pseudonym. If so, it is not just the author’s name that is fake and untrue, but much of the substance of the article itself.

False Claim 1: “Minor role in the making of the documentary, 'The War Crimes Files'” 

The 'Carver' article states that I have ‘lied’ about my role in the documentary and alleges that I ‘was merely in charge of handling the camera equipment, ensuring timely staff meals, and doing any heavy lifting as required.’ It also claims that ‘Renowned Bangladeshi journalist Mr Abdul Gaffar Chowdhury’s contribution is also noteworthy in the making of the documentary.’ 

The War Crimes File was a documentary made by the production company Twenty Twenty Television (where I worked at the time) and broadcast on UK’s Channel Four Television in 2005. It was the first major investigative documentary uncovering alleged war crimes committed by three men, all of whom were in 1971 members of the Jamaat-e-Islami or its student wing, and at the time the film was made were residing in the UK. The documentary won a Royal Television Society Award, ‘Special Commendation’. 

I developed the concept and proposal for the documentary, and was in charge of all the investigation work that was carried out to make the film. The UK journalist Abdul Gaffar Chowdhury played no role whatsoever in the making of this film; he was just one amongst over hundred people interviewed as part of researching the background to the programme.

Gita Sahgal (who produced the film) Howard Bradburn (who directed it), the reporter Zulfikar Ali Manik (who was a member of the local research team), and Tanvir Mokammel (the well known Bangladeshi film Director, who was also a key member of our team) can all be contacted by anyone with queries about who played what role in making this film.

After the broadcast of the documentary on Channel Four television, I organized the production of a Bangla version of the film, which is now routinely broadcast on Bangladesh Television. It was narrated by the cultural activist and Awami League Member of parliament Asaduzzaman Noor and was edited by M Hamid, the former head of Bangladesh Television. They can also be contacted about my role.

Those working on the issue of war crimes in Bangladesh were very much aware of my role in the film - and were highly appreciative of it. In 2000 the Ekkatorer Ghatak Dalal Nirmul Committee, which has been the main organisation behind campaigning for war crimes trials, issued a certificate signed by Professor Kabir Chowdhury, (President of its Central Advisory Committee) and Shamsur Rahman (President of its Central Executive Committee). It stated.

‘David Bergman, who by now has become a household name in Bangladesh demonstrates his commitment to justice and correcting the wrongs of Bangladesh, which was a victim of the worse Genocide since the World War II that left three million Bengalees killed in just nine months of the Liberation war of 1971, had never lost hope of putting those involving in the senseless and systematic killing of men, women and children besides other atrocities on trial. They were reminded again by Mr David Bergman’s efforts of those nightmarish days. His film, “The War Crimes Files” opened a new chapter in Bangladesh’s history and boosted the campaign of the Ekattorer Ghatak Dalal Nirmul Committee to bring those responsible for the killings to justice as they fell in the category of war criminals.
Mr David Bergman told the world about those killings as a journalist whose heart had gone out for the Bengalees and possibly established one of the first visual documentary evidence of some of the collaborators of the Pakistani occupation army in 1971 who aided and abetted the killings in 1971. The Nirmul committee is eternally grateful to Mr David Bergman and is honoured to present this citation as a mark of its respect and in recognition of his contribution to the cause led by Jahanara Imam in bringing the killers and collaborators to justice.” (Emphasis added)
False Claim 2: “Suspected of stealing footage”

The article states that during the production of the film, ‘some of the footage of the documentary was stolen, for which David is still suspected today.’ 

No footage was ever stolen, and I have never before heard of any such allegation. This is entirely fictitious.

False Claim 3: "Sold footage to alleged war criminal Chowdhury Queen Uddin" 

The article states that, ‘In fact it is rumored that David sold said footage to Chowdhury Mueen uddin at a steep rate.’ 

There have never been any such ‘rumours’. I do not have access to any of the documentary footage – all of which is now in the possession of Channel Four Television. Moreover, I have never met Chowdhury Mueenuddin or had any relationship of any kind with him personally or thorough intermediaries – other than that of investigating him for alleged war crimes as set out in the film.

In fact I spent months on behalf of the documentary team to defend the film, when Chowdhury Mueenuddin brought libel proceedings in the UK – and I worked closely with the legal team to rebut his allegations. I also worked with individuals in Bangladesh and in the UK to request Scotland Yard to investigate the claims against Chowdhury Mueenuddin.

False claim 4: "Gaffar Chowdhury instigated marriage"

The article claims that Mr Gaffar Chowdhury said, 'I was the one who instigated [my wife] and David’s relationship.' 

This is perhaps the most ridiculous claim. This is entirely false. Mr Chowdhury had no role whatsoever in introducing me to Sara. 

False claim 5: "Received money from Jamaat/BNP" 

The article makes a series of false, and grossly defamatory allegations that I received money from the Jamaat. The title accuses me of being a 'hired henchman of war criminals’. The article goes onto claim that I ‘teamed up with Jamat and the BNP’, that I ‘spent considerable resources and Jamati funded money, deploying lobbyists and numerous representatives of the law, various organizations related to international law, its members, related journals, magazines, newspapers etc,’ and that I am ‘hoarding Tk 65 crore (roughly £6million) in Bangladeshi money from the representatives of convicted war criminal Mir Quasem.”

These are all fictitious and highly defamatory statements. They are completely untrue and have no basis in fact.

As I have stated in response to other similar allegations, all my writing on the war crimes trial and on other matters is done independently. I have only only ever received professional fees for my articles from any newspaper or news website for whom I write. That also goes for what I write in my blog - though of course no-one pays me for that!

Ironically, ‘Carver’ does not see fit to mention that I broke the real Quasem lobbying story in the New Age in October 2011

False claim 6: "Inaccurate and motivated reporting on the War Crimes Trial" 

The article states that I am ‘continually weaving articles which were biased, fallacious and at times were not even half true’; that I am involved in ‘blatantly false propaganda’; that I have ‘provided sources and document, which are factually incorrect and baseless’; that I strive ‘to highlight anything negative about the tribunal’; that I ‘constantly accused the judges … of being biased and demonstrating favoritism;’ hat I craft articles to make the tribunal appear to be a “political farce”; and that I am seeking to ‘reduce the credibility of the current government.’ 

These are entirely false statements - which is clear from his failure to provide any evidence to support such serious allegations. My articles are well researched, and based on factually accurate materials and sources.

In my writing I have always supported the need for accountability and for the establishment of a process to investigate 1971 crimes and the prosecution of those responsible, to bring justice for the victims of the crimes against humanity committed during the war.

I believe in and support the rights of victims of the war crimes committed in Bangladesh in 1971 to secure justice, and the need to end impunity enjoyed by those responsible, including Pakistani army and their local collaborators.

At the same time - and this is simply the other side of the coin in seeking an accountability process - I believe that trials that take place should be fair and follow due process. I have therefore sought to follow and document the trial proceedings and have done so in good faith, and in a fair, objective and neutral manner. This unfortunately has angered people who feel that the trials should not be subject to any critical scrutiny - and as a result they make the kind of allegations that are set out in the 'Carver' article.

False claim 7: “Falsely wrote that a defence witness had been abducted by the state” 

'Carver’ argues that I contrived, and made up the story of the abduction of Sukhranjan Bali, a defence witness whom law enforcement agencies are alleged to have abducted. 

“Carver's” suggestion that I was present at the time of the abduction somehow orchestrating events is false and absurd - I first read about the allegations in the same way as everyone else, on the online news websites. The ‘Carver’ article also provides a garbled and inaccurate version of the background to Bali’s abduction. Those who wish to read about what actually happened, can read this and this. Significantly, Sukhranjan Bali has himself stated that he was picked up by law enforcement authorities from outside the International Crimes Tribunal and kept in secret custody for about six weeks before being taken over to India.

False claim 8: "Falsely wrote about the trial of Salauddin Quader Chowdhury" 

'Carver' accused me of “duplicity”, and “skullduggery” in my writing about the trial of Salauddin Quader Chowdhury and claims that I ‘defend SQC and his representatives when they tried to bully the tribunal into introducing fresh witness though it.’

This is entirely inaccurate. Nothing in my writing is concerned with defending any accused person – it is simply about looking at the process. My writing on Chowdhury has focused on the Tribunal only allowing defence lawyers to summon 5 witnesses to testify against 20 charges whilst the prosecution had no restrictions, and were able to summon 41 witnesses, as well as the Tribunal not referring to affidavits of witnesses in its judgment. These are both matters of public record. My writing has also considered how the appellate division dealt with these matters.

False claim 9: "Other people are employed to maintain the blog" 

The ‘Carver’ article claims that this blog is ‘maintained by 4 full-time employees and 2 part timers. It also claims that one of my former part-time employees ‘revealed that Mr Bergman paid him 7 grand a month to maintain his blog.’ 

This is entirely false and fictitious. I am the only person who maintains my blog and publishes material on it. have not employed or paid any person to “maintain my blog” .

For a period of time, which ended over two years ago, I engaged a number of Dhaka University Students to attend the Tribunal and to take notes of the proceedings and paid them an honorarium from my own pocket to cover their time. This was done openly with the permission of the Tribunal.

False claim 10: “Allegations against my family” 

The ‘Carver’ article also makes a number of false and grossly defamatory claims about my parents in law and my wife. 

These are so vicious and disgusting, apart from being completely untrue, that I am not going to respond to them. Anyone who has questions about their contribution to the cause of bringing war criminals to trial can speak to the Liberation War Museum, Projonmo 71 or any other person involved with the process who does not have a personal or partisan political agenda

Sunday, March 6, 2016

The food minister, defamatory allegations, and the International Crimes Tribunal

Qamrul Islam, the Food minister
Is it possible for there to be a conversation about Bangladesh's International Crimes Tribunal without one party making baseless arguments and allegations claiming that another party is (a) pro-Jamaati; or/and (b) a lobbyist for the Jammat;  or/and (c) paid by the Jamaat; or/and (d) someone who supports war criminals; or (e) some other combination of the words 'Jammat', 'war criminal', 'lobbyist', and 'money'? In Bangladesh, when one of those parties is writing critical commentary about the process, the answer  to this question seems to be 'No'.

It is this kind of defamatory 'name calling' that prevents the possibility of a civilised and intelligent debate about the proceedings, and is the reason why there are so few people who dare write at all about the Tribunal proceedings from anything other than an uncritically laudatory perspective.

Defamatory name calling has become a very effective silencing technique.

A few days ago, it was, of all people, Chief Justice Surendra Kumar Sinha who was the subject of defamatory insinuations.

It is of course not just people in Bangladesh who have been subject to these defamatory allegations. Amnesty International, Human Rights Watch, The Economist and the New York Times have also been similarly accused.

I mention this now as at a meeting today at the office of the governing Awami League, the Food minister, Qamrul Islam made defamatory allegations against me involving some of those four words. The minister's comments about me are defamatory as the allegations do not have any factual basis. They are totally untrue. Since there is no evidence of any kind to support the allegation, any media repeating such allegation is also committing defamation - and so they should not publish them.

The Chief Justice, Mir Quasem Ali, contempt and the Nirmul committee

Mir Quasen Ali, Jamaat-e-Islami leader convicted
of war crimes during the 1971 war
The Appellate Division of Bangladesh's Supreme Court will on Tuesday, 8 March give its decision on Mir Quasem Ali's appeal against his conviction and death sentence for crimes committed during the 1971 war.

Yesterday, just three days before the decision that will decide the fate of the Jamaat leader - and when the matter was clearly sub judice with arguments having been heard in court just a few weeks earlier - the Ekattorer Ghatak Dalal Nirmul Committee, held a meeting dealing with the on-going proceedings.

Seeking to interfere with ongoing and sub-judice proceedings is a serious contempt of court. That is why people are not allowed to comment when proceedings are active in a court. The proceedings relating to Mir Quasem Ali's were clearly active with a decision to be made in a few days time.

Moreover, as reported in the media, the food minister made comments that apparently sought to interfere with the judgement of the court. Others including Shahriar Kabir, the executive director of the Nirmul committee, former judge, Shamsuddin Chowdhury Manik, and Mumtassir Mamoon also did not hold back in their criticisms of the chief justice in relation to how he has dealt with these ongoing proceedings.

The meeting was triggered by criticisms made during the appeal hearing by the Chief Justice of those who investigated and prosecuted the case of Mir Quasem Ali in the trial court.

The comments made at the meeting all appear to be contemptuous and so will not at this stage be set out in this blog until the court has given its decision on the appeal on Tuesday. The comments can however be read in the Daily Star and New Age

However, it can be stated that the minister sought a re-hearing of the appeal proceedings without the involvement of the Chief Justice.

It will be interesting to see whether contempt proceedings will be initiated against those who organised the meeting as well as those who arguably made comments that sought to directly interfere with the result of ongoing proceedings.

Thursday, December 3, 2015

"915 men were just slain by a flick of one Pakistan officer’s fingers"


One has to wonder who is guiding Pakistan's Foreign ministry these days? 

On 30 November, the  ministry issued a second controversial press statement about the 1971 war where it stated that the Pakistan government:

"rejected [the Bangladesh government's] insinuation of complicity in committing crimes or war atrocities [during the 1971 war]. Nothing could be further from the truth." 
This second statement came in response to the Bangladesh government's criticism of the Pakistan foreign ministry's first statement where it had criticized the executions of Salahuddin Quader Chowdhury and Ali Ahsan Mujahid for crimes committed during the 1971 war.

Let us, for a moment, put to one side everything Bangladesh and the international community has said about Pakistan's role in committing atrocities during the 1971 war and just consider what Pakistan's own military and civilian officers told the Pakistan government's own  inquiry, which was set up in July 1972 and chaired by the Chief Justice Hamoodor Rahman.

The inquiry committee produced an initial report, and in 1974 after the return of Pakistan military officers who had been held in India, a supplementary report was produced after taking further evidence. It was declassified in 2000

The report is primarily - if not solely - based on evidence from these officers, and therefore its conclusions are naturally limited. However, the statements given by these officers, some of which are extracted in chapter 2 of the supplementary report, make very clear that war crimes and atrocities were committed by the army officers. In summary, Pakistan army and civilian officers told the committee:
"Action was based on use of force primarily, and at many places indiscriminate use of force was resorted to" 
"I addressed a letter to all formations located in the area and insisted that loot, rape, arson, killing of people at random must stop" 
"Excessive force was used on that night [of 25th March 1971]" 
"[Officers] took the law into their own hands to deal with the so called miscreants." 
"Miscreants were killed by firing squads." 
"Two officers and 30 men were disposed of without trial." 
"Innocent people were killed by us during sweep operations" 
"17 Bengali Officers and 915 men were just slain by a flick of one Officer’s fingers."

Saturday, November 28, 2015

And what of the trial of the 195 Pakistani officers

Surrender of the Pakistan military to Indian
forces in December 1971


On 22 November, the spokesperson for the Pakistan foreign ministry issued the following statement about the execution of Salauddin Quader Chowhdury and Ali Ahsan Mujahid, leaders of the opposition   Bangladesh Nationalist Party and Jamaat-e-Islami respectively, following their conviction of international crimes during the 1971 war that resulted in the independence of Bangladesh. The Pakistan foreign ministry statement said:
"We have noted with deep concern and anguish the unfortunate executions of the Bangladesh National Party Leader, Mr. Salauddin Quadir Chowdhury and Mr Ali Ahsan Mojaheed. Pakistan is deeply disturbed at this development.

As emphasized earlier, we have also been noting the reaction of the international community on the flawed trials in Bangladesh related to events of 1971.

There is a need for reconciliation in Bangladesh in accordance with the spirit of Pakistan, India, Bangladesh Agreement of 9th April 1974. The Agreement calls for a forward looking approach in matters relating to 1971. This would foster goodwill and harmony."
The inappropriateness of Pakistan issuing such a statement was perhaps best captured in the statement given the eminent Pakistani jurist and human rights campaigner, Asma Jahangir, who said (and I paraphrase) that whilst the trials may have been unfair, it was ridiculous for Pakistan to be so concerned about these executions when the government failed to raise any concerns about Pakistani citizens executed in Saudi Arabia, or about its own trials that result in executions. This is how her remarks, that were given to reporters at court, was reported in Dawn newspaper:
“Equal passion, we hope, will be shown by the government” for the people on death row in Pakistan than being hanged elsewhere in the world by denying due process, she said.
She was of the opinion that the hangings in Bangladesh would further deepen the divide and haunt its politics in future. She said that all human rights activists who monitored these trials agreed that due process had not been given to the two accused. 
“We have condemned the unfortunate developments and even given out urgent appeals to the Amnesty International and other international human rights organisations in this regard,” she added. 
But, Ms Jahangir said, Pakistan should first take up the issue of capital punishment through unfair trials here and of those Pakistanis who were being consistently executed in Saudi Arabia and then show disproportionately high passion for the politicians of Bangladesh.
She said the government was only confirming the fact that two men were political agents and working for the cause of Pakistan. Are these two Bangladeshi more important than the people living in Pakistan, she asked. If the answer is in the affirmative, the government should also explain why and what for. 
Ms Jahangir admitted that the two politicians had been executed without affording due process, but regretted that the same right was being denied to the people facing trial in military courts on terrorism charges. 
“We are against the death penalty and unfair trials whether in Pakistan, Bangladesh or elsewhere,” she said, adding that everybody knew that the trial of the two Bangladeshi politicians was flawed, but the role of Pakistan was something which was not understandable. 
“If they (Pakistan government) are against the death penalty or the undue process, they should look into the trials being conducted by the military courts,” she said.
However, one thing was missing from her statement - which would have been very appropriate for her have commented on - was Pakistan's 'obligation' to put on trial its army officers who committed crimes during the 1971 war.

To its credit, in its rebuke to the Pakistan ministry statement, the Bangladesh government did make this very point. According to the government's press statement, the Pakistan government was:
"[R]eminded that it was Pakistan that has systematically failed in its obligation to bring to justice those of its nationals identified and held responsible for committing mass atrocity crimes in 1971, and Pakistan could not escape the historic obligation it owed to the people of Bangladesh as well as to the international community."
What does one mean by Pakistan's obligation to bring to account its officers accused of crimes during the 1971 war?

After the surrender of the Pakistan government's authorities, the Bangladesh government identified 195 Pakistani army officers, then in the custody of the Indian government, who it claimed were involved in war crimes and wanted brought back to Bangladesh for prosecution. There followed desperate attempts by the Pakistan government to prevent this happening - including arresting over 200 Bengalis in West Pakistan who they claimed had acted as spies during the war and announcing that they would be prosecuted and, along with China's assistance, preventing the country's recognition at the United Nations.

In addition in May 1973, Pakistan applied to to the International Court of Justice seeking to prevent the Indian government sending an order from it prohibiting the Indian government handing these officers over to Bangladesh for trial.

So far so good. But what is particularly significant is that during this period, the Pakistan government accepted that they would prosecute the men themselves with trials involving international supervision. So in March 1973, the Pakistan government issued a statement stating that:
"Pakistani government rejects the right of the authorities in Dacca to try any among the prisoners of war on criminal charges, because the alleged criminal acts were committed in a part of Pakistan by citizens of Pakistan. But Pakistan expresses its readiness to constitute a judicial tribunal of such character and composition as will inspire international confidence to try the persons charged with offenses." (emphasis added)
In addition, in its application to the International Court of Justice, the Pakistan government argued:
(1) That Pakistan has an exclusive right to exercise jurisdiction over the one hundred and ninety-five Pakistani nationals or any other number, now in Indian custody, and accused of committing acts of genocide in Pakistani territory by virtue of the application of the Convention on the Prevention and Punishment of the crime of Genocide of 9 December 1948, and that no other Government or authority is competent to exercise such jurisdiction.  ...

(3) That there can be no ground whatever in international law, justifying the transfer of custody of these one hundred and ninety-five or any other number of prisoners of war to "Bangla Desh" for trial in the face of Pakistan's exclusive right to exercise jurisdiction over its nationals accused of committing offences in Pakistan territory, and that India would act illegally in transferring such persons to "Bangla Desh" for trials.

(4) That a "Competent Tribunal" within the meaning of Article VI of the Genocide Convention means a Tribunal of impartial judges, applying international law, and permitting the accused to be defended hy counsel of their choice. The Tribunal cannot base itself on ex-post facto laws nor violate any provisions of the Declaration of Human Rights. In view of these and other requirements of a "Competent Tribunal", even if India could legally transfer Pakistani Prisoners of War to "Bangla Desh" for trial, which is not admitted, it would be divested of that freedom since in the atmosphere of hatred that prevails in "Bangla Desh", such a "Competent Tribunal" cannot be created in practice nor can it be expected to perform in accordance with accepted international standards of justice. (emphasis added)
These are clear commitments on the part of the Pakistan government that it would take the same steps that the Bangladesh government - their  prosecution for genocide. Moreover, they committed to doing so through international standard trials.

In 1974, the Tripartite agreement between India, Bangladesh and Pakistan was signed, in which it was agreed that the 195 Pakistani POWs would be returned to Pakistan, as part of an overall agreement between the three countries. The relevant part of the document reads:
13. The question of 195 Pakistani prisoners of war was discussed by the three Ministers, in the context of the earnest desire of the Governments for reconciliation, peace and friendship in the sub-continent. The Foreign Minister of Bangladesh stated that the excesses and manifold crimes committed by these prisoners of war constituted, according to the relevant provisions of the U.N. General Assembly Resolutions and International Law, war crimes, crimes against humanity and genocide, and that there was universal consensus that persons charged with such crimes as the 195 Pakistani prisoners of war should be held to account and subjected to the due process of law. The Minister of State for Defense and Foreign Affairs of the Government of Pakistan said that his Government condemned and deeply regretted any crimes that may have been committed.

14. In this connection the three Ministers noted that the matter should be viewed in the context of the determination of the three countries to continue resolutely to work for reconciliation. The Ministers further noted that following recognition; the Prime Minister of Pakistan had declared that he would visit Bangladesh in response to the invitation of the Prime Minister of Bangladesh and appeal to the people of Bangladesh to forgive and forget the mistakes of the, past, in order to promote reconciliation. Similarly, the Prime Minister of Bangladesh had declared with regard to the atrocities and destruction committed in Bangladesh in 1971 that he wanted the people to forget the past and to make a fresh start, stating that the people or Bangladesh knew how to forgive. 
15. In the light of the foregoing and, in particular, having regard to the appeal of the Prime Minister of Pakistan to the people of Bangladesh to forgive and forget the mistakes of the past, the Foreign Minister of Bangladesh stated that the Government of Bangladesh had decided not to proceed with the trials as an act of clemency. It was agreed that the 195 prisoners of war may be repatriated to Pakistan along with the other prisoners of war now in the process of repatriation under the Delhi Agreement.
Whilst the terms of the agreement did not state that Pakistan would follow through with its earlier commitments to prosecute these men, it certainly did not preclude the possibility - and it is reasonable to assume that it would do so. As this blog has already noted, the highly respected international lawyer Geofrey Robertson has written about this issue in his recent report on the Bangladesh trials. He states that:
"Notwithstanding the agreements between India and Pakistan in 1972-3, and the Delhi Tripartite Agreement in 1974, and the devious dealings after Mujibur was killed, I can find no evidence in these events that any amnesty binding in law was offered or granted for crimes against humanity committed during the civil war. 
….. Although the Tripartite Agreement made in Delhi in 1974 is often described as an “amnesty”, at least for the Pakistani suspects, it is no such thing. It has been described by historians as “implicitly recognising” that none of the 195 “would ever be tried or held accountable,” but any binding amnesty must be clearly expressed and not merely “implicit”. True it is that Bangladesh agreed to abandon its demand for the 195 prisoners in Indian custody, but it did not thereby abandon the idea of putting them, or others, on trial at some time in the future. There can, in any case, be no amnesty for an international crime like genocide. The deal in Delhi was not a bar to prosecutions, however many years later, under ICTA." (p.47)
In the conclusion of the report Robertson says that Pakistan officers should be amongst those whom a an ad hoc international criminal Tribunal, established by the United Nations, should investigate and prosecute and he goes onto say that
"Perhaps it is time for Bangladesh to seek reparations, in the same or some other forum, for the Pakistan army crimes of genocide that so blighted its birth and its future as a nation."
Whilst there are delicate diplomatic issues that need to be taken into account, the failure of the Pakistan government to re-initiate investigations and commence (if appropriate) criminal proceedings (in a trial involving international involving judges) against those of the 195 army officers who are still alive, remains a huge justice gap in relation to the 1971 war.

Friday, November 27, 2015

Bangladesh government hits back at UN criticism

The Bangladesh government has responded to a statement by the United Nations High Commissioner for Human Rights. Below are both the statements of the UN, and that of the Bangladesh government.

The Bangladesh government in its statement focuses on the adequacy of the International Crimes (Tribunal) Act 1973, as amended in 2009 (rather than the practice of the trials) and refers to an International Bar Association review of the 1973 Act. In 2010, the Daily Star, wrote an article about this. and you can download the whole report here, which is rather more critical of the law than the government statement suggests, though it does indeed contain the sentence quoted by the government: "The 1973 Legislation together with the 2009 amending text, provides a system which is broadly compatible with current international standard”

(You can read more about these issues here and here.)

Here is the UN statement:
The execution in Bangladesh on Sunday of Salauddin Quader Chowdhury and Ali Ahsan Mohammad Mujahid brings to four the number of people hanged following convictions by the Bangladesh International Crimes Tribunal. Mujahid, leader of Jamat-e-Islami and Chowdhury, of the Bangladesh National Party, were sentenced to death by the Bangladesh International Crimes Tribunal on charges of war crimes and genocide. The Supreme Court rejected their appeals on 18 November 2015. 

Saturday, November 21, 2015

10 key concerns about the Salauddin Quader Chowdhury trial process

Wife of Chowdhury visits him in Jail after
appellate court review decision

Post script: Please note that Chowdhury was executed just after midnight on 22 November 2015.

This article set out some key points on why Salauddin Quader Chowdhury did not receive a fair trial, and why there are serious questions as to whether he actually committed the crimes for which he now faces execution.

However, before setting these points out, some background is important. 

First it is notable that unlike the Jamaat leaders who have been executed or face execution for similar crimes committed during 1971, Chowdhury comes from a well established elite family, which is extremely well connected, with many family members within the current governing party. So, for example, his second (but very close) cousin is Salman Rahman, the chairperson of one of the large corporate conglomerates in Bangladesh, and an adviser to Sheikh Hasina, the country's current prime minister. In addition Chowdhury is the cousin of Awami League MP, Saber Hossain Chowdhury, though apparently they are not on good terms. Moreover, Salauddin Quader Chowdhury's immediate family has been, and remains, acquainted with the prime minister Sheikh Hasina and her family. 

Second, Salauddin Quader Chowdhury, who had been elected six times as a member of parliament, is a controversial figure in Bangladesh politics. Putting to one side his alleged involvement in crimes during the 1971 war, there are many people who argue that he is a communal figure and that after 1975 committed other crimes for which he should be held to account. He is also known as a rather arrogant and over bearing person, characteristics which were evident at certain points during the trial where he harangued the Tribunal, and sacked his lawyers multiple times. Other than his family and friends, and no doubt a core of supporters, even within the Bangladesh Nationalist Party, where he was a member of the party's Standing Committee, there are likely to be few who will shed many tears.

Third, according to multiple well placed sources, at some point after 1975, he became a key agent in Bangladesh for Pakistan's intelligence agency, ISI (Inter Service Intelligence). During the last BNP/Jamaat government (2001-2006), where he held the position as adviser of parliamentary affairs to the then prime minister, it is also said that he was a key person blocking the Bangladesh government from facilitating Indian companies investing in Bangladesh, including a $3 billion Tata group project. As a result of his ISI role, Indian intelligence agencies are said to be  keen that Chowdhury be executed for the crimes which the Bangladesh courts say he committed during the country's independence war.

Fourthly, there are many people in Bangladesh who are absolutely convinced that Chowdhury committed the crimes for which he has been convicted and sentenced to death. I have heard people, whose opinion one should respect, state adamantly that they 'know' Chowdhury was in Chittagong during the 1971 war and 'know' people who saw him commit these crimes. Nonetheless, I have also heard the exact opposite from other equally respectable people.

So, returning to the main purpose of this article, whilst many people have different opinions about Chowdhury, it is at a criminal trial where one expects to be able to determine the truth about the allegations that he committed serious crimes during the 1971 war. Of course, this can only happen if certain basic standards of fairness exist - and in particular this requires that the defense be provided every opportunity to present its case, allowing witnesses to be summoned and cross-examined.

However there are real concerns about the trial. Although the prosecutors continue to argue that the trial  process was fair, there are the key reasons for arguing that Chowdhury did not get a fair trial and why his conviction are unsafe. It would be interesting for the two prosecutors to respond to the ten points below.

Chowdhury was charged with 20 separate offenses involving crimes against humanity and genocide which took place on multiple dates during the 1971 war. He was convicted of 9 offenses between April and July 1971, and sentenced to death for four offenses which took place on 13 and 17th April, within three weeks of the war.

1. Severe restriction on witnesses
The Tribunal did not impose any restriction on the number of witnesses that the prosecution could summon, and the prosecutors called 41 witnesses. However, the Tribunal only allowed the defense lawyers to summon 5 witnesses, and then it subsequently restricted the defense lawyers to summoning only 4 witnesses. There are two points here. First it is practically impossible for an accused to defende himself against 20 offenses with only 4 witnesses. Secondly, it is clearly totally imbalanced, with the prosecution allowed 41 witnesses, and the defense only 4.
(To read more detail about this, see 'Explaining the missing witnesses')

2. Restricted time provided to make defense case, compared to time provided to the prosecution
Although the Tribunal had allowed the defense 5 witness, the judges stopped the defense from presenting its fifth witness arguing that the lawyers were wasting time. However, whilst the prosecution presented its case over a period of 13 months, the defense were only allowed a total of 28 working days, at which point the Tribunal stopped the defense lawyers calling a final witness. Whilst some of the 13 months involved various defense applications, the Tribunal gave the prosecution over ten times the amount of time to present its case. (To read more about this, see link above: 'Explaining the misses witnesses')

3. Defence unable to summon 8 key alibi witnesses
As a result of the restriction in the witness numbers, the defense were unable to summon 8 witnesses (5 of whom were from Pakistan) - who the defense lawyers were intending to call to support its alibi that Chowdhury was not in Bangladesh at the time the offenses were committed. Even though during the trial, copies of affidavits from these witnesses were submitted to the Tribunal - and so the court would have been aware of the relevance of the evidence that these witnesses would have given had they testified in court - the court did not reconsider its earlier restriction of the number of witnesses.
(To read what these witnesses would have said, read this 'The missing 26 witnesses')

4. Defence unable to summon 20 Bangladeshi witnesses
In addition, the defense were also unable to summon Bangladeshi witnesses. For example, in relation to the four offenses for which Chowdhury was sentenced to death, there were 20 witnesses whom they would have summoned had they been able to do so - each of whom would have provided evidence that questioned key elements of the prosecution case for all four of these death sentence offenses. Again, at the time that the affidavits were submitted to the Tribunal, the court would have been aware of the relevance of the evidence that these witnesses would have given had they been allowed to testify in court, but the court did not reconsider its earlier restriction of the number of witnesses. (To read more about this, see link above: 'The missing 26 witnesses')

5. Tribunal judgement not refer to the affidavits submitted
In the judgement of the trial court, the Tribunal did not mention the 'affidavits'* at all.
See judgement

6. Without evidence, Appellate Division ruled that defense lawyer manufactured six affidavits
Unlike the Tribunal, the appellate division did consider the affidavits during the appeal. However, in its judgement the court ruled that a UK lawyer representing Chowdhury had 'beyond doubt ..... manufactured’ six affidavits ‘to save his client Salauddin Quader Chowdhury’ though it provided no evidence to support such a conclusion. The lawyer himself stated that he rejected the allegations 'in their entirety. They are unwarranted and unsupported by any credible facts.' He went onto say that, ‘If the Court was concerned as to veracity or legitimacy of the statements they could have easily called any of the witnesses to give live evidence where their statements could have been tested in an open adversarial process.’

7. Appellate Division rules affidavits inadmissible on technical grounds, though law specifically states that the Tribunal shall 'not be bound by technical rules of evidencd'
The appellate judgement also ruled that there were a number of technical problems with the affidavits - in how they were notarized, in that they did not have a seal of a Bangladeshi counsel etc - which meant that they could not be considered by the court. However, the court did not consider section 19(1) of the International Crimes (Tribunal) Act 1973 which states that "A Tribunal shall not be bound by technical rules of evidence." Moreover, if the appellate division had doubts about the technical aspects of the affidavits, the witnesses themselves could have been summoned to the court.

8. Appellate Division refuses to call 8 alibi witnesses on basis of incorrect rationale
As part of its subsequent application seeking a review of the appellate division's decision (which had upheld the trial court decision), the defense asked that 8 alibi witnesses, who had not be able to testify earlier, be summoned to the court, or that if the court would not agree to summon the witnesses, then it would admit as evidence the videos of the witnesses reading out their affidavits which it had submitted.  

The court however declined to do this, stating that 'if [Chowdhury] had at all underwent education in Punjab University, he could have produced authentic documents from the University concerned.'

However, the offenses for which he was sentenced to death took place in mid-April, at which time Chowdhury claims he was in Karachi, not at Punjab university in Lahore. He has only claimed to have been at Punjab University between May and August 197.  So the issue of the certificate is not relevant to these offenses.

However, most of the witnesses which the defense had wanted to summon were specifically relevant to Chowdhury's presence in Karachi during the days when he is said to have committed the four death penalty offenses. It is therefore not clear why the Appellate Division refused to call these witnesses on the basis that he had not been able to get a copy of his certificate - as the witnesses and the certificate relate to different parts of Chowdhury's alibi in 1971.

9. Non-admission of university certificate, without seeking clarification from university authorities.
The defense, finally, filed a duplicate copy of Punjab university certificate, with the court. In addition, the lawyers filed (a) a copy of the certificate attested by the chancellor of the university, its registrar, and the head of the department of political science; (b) an attested statement written by the registrar about the genuineness of the statement, along with an offers to provide any other assistance and (c) a video of the registrar reading out the statement.

The court however claimed that the certificate was 'forged' - though this would have required a conspiracy involving senior members of the university who had attested the certificate, and there was no evidence that they were involved in such a forgery. The appellate division did also raise some other issues about the certificates which they argued suggested that the certificate was a forgery - but the court came to this conclusion without seeking any clarification from the university authorities who would have been the right people to clarify their concerns.
To read more about this, click here: 'Was the certificate forged?'

10. The accused must prove his innocence
For the defense of alibi in relation to international crimes, the law as decided at the international tribunals is that there is no burden upon the defense to prove the alibi, but rather the prosecution must 'eliminate the reasonable possibility that the alibi is true'. This reflects the general criminal law principle that the prosecution must prove its case beyond reasonable doubt. However, the Tribunal judgement (para 247) stated that in relation to Chowdhury: 
'(1) Onus is entirely on the accused to prove the plea of alibi.
(2) The defence is to prove affirmatively that during the War of Liberation in 1971 the accused was continuously staying in West Pakistan since 29 March to 16 December,1971.
(3) The defence is to prove that the accused was not present in Bangladesh in 1971, at the time when the occurrences took place in Chittagong.
This principle was affirmed by the appellate division, when it stated 
"The plea of accused’s undergoing educational study in West Pakistan during the relevant times in 1971 being the sheet anchor of the case must be proved beyond doubt."
In effect this required Chowdhury to prove that he was innocent - which is against the very basic principles of criminal law. In fact not that he must prove that he was innocent, but do so 'beyond doubt' which is an even stricter test than the burden on the prosecution to prove its case, which is 'beyond reasonable doubt'

* The judgement does refer to 'documents', though not clear whether this also meant to include 'affidavits'. If so, the judgement stated that affidavits not properly admitted as evidence