Nationalising international justice

Below is the text of a short article recently published in the International Justice Tribune. For those who do not know it, the IJT is an excellent bi-monthly magazine on international justice issues throughout the world. 

You can download the article from the magazine as a PDF, here. (The title given by the magazine by the way is not mine!)

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Recent verdict stir up controversy over Bangladesh war crimes tribunal

David Bergman

A spate of rulings against leaders of Bangladesh biggest Islamist opposition party for atrocities during the war in 1971, shows the International Crimes Tribunals (ICT) forging ahead – despite continuing criticism from outside the country.

On Monday, Bangladesh’s Supreme court upheld the death penalty for Mohammed Kamaruzzman, one of the current leaders of Jamaat-e-Islami, convicted by the International Crimes Tribunal in May last year for genocide and torture. This decision comes hot on the heals of two other death sentences, handed out by the ICT last week.

Transcript of what US ambassador Rapp said

Two days ago the US Ambassador for Global Justice gave a conference call to a journalist from Prothom Alo newspaper and one from New Age (myself) who were asked to come to the American Centre

It is not clear why so few journalists were called, nor why the statement was not put on the US state department website.

Here is the article in New Age that was based on the call

Rapp however spoke for about 30 minutes, and the detail of what he said is interesting - whether one agrees with it or not.

Below is a transcript of the main part of the conference call. (There is some more, but the line was rather poor, and it will take time to transcribe, and this may not be possible at all.) For those interested to see what Rapp said last time he was in Dhaka in August 2013, see the transcript of that press conference here

On Monday, Rapp started by reading out the following statement over the phone:

‘The United States supports bringing to justice those who committed atrocities in the 1971 Bangladesh war of independence. In doing so, the ICT trials must be free, fair and transparent, and in accordance with international obligations that Bangladesh has agreed to uphold though its ratification of international agreements including the International Covenant on Civil and Political Rights.’  

‘Countries that impose a death penalty must do so with great care, in accordance with a very high standard of due process and respect for fair trial guarantees. It is inevitable that scrutiny will be heightened when a death penalty is pronounced. Therefore judges, as well as authorities having powers of commutation, should exercise great caution before imposing and implementing a sentence of death.’  

As I said during my fifth visit to Bangladesh in August 2014, we have seen some progress but still believed that further improvements to the International Crimes Tribunal process could ensure these proceedings meet domestic and international obligations. Until it is shown that these obligations have been met it is best not to proceed with executions given the irreversibility of a death sentence.’ 

He then allowed some questions to be asked

Kamaruzzaman impending execution rolling blog

Rolling blog on impending Kamaruzzaman execution can be found here

Journalists reporting on the numbers of deaths in 1971

How should journalists report on the numbers of those who died in the 1971 war?

This question has again come to the fore

as bdnews24.com has run an article in which Shahriar Kabir, a well known activist in support of war crimes trials, has criticized a news piece broadcast on Al Jazeera in their 'Inside Story' series, which stated that between:

'Historians estimate 300,000 to 500,000 were killed in the nine months by Pakistani military and local collaborators.'

Kabir is quoted as saying in response to this

“Any foreign or local media should use official statistics while handling a story as sensitive as this. Three million were martyred, says the government data. .... What is the source of the information they used instead of the official count? These types of information serve the purpose of those who were involved in the genocide.”

He adds that to say this is 'an offence' and 'There is law for distorting information in our country ... I will demand that measures be taken against Al Jazeera under that law.'

There are a number of important points to be said about this article. (Disclosure: I sometimes write for, and appear on Al Jazeera)

1. Attempts to silence people

Increasingly in Bangladesh there is a view that if you do not like what another person says or another person's opinion, then you seek or threaten legal action against that person, or take some other action to silence them.

What was actually said on Al Jazeera

There has been some press comment, much of it misconceived, about an 'Inside Story' programme on Al Jazeera broadcast on 4 November, where I was interviewed along with Mofidul Huq (from the liberation war museum in Dhaka) and Toby Cadman (defence counsel, international lobbyist for the accused) about the International
                                                      Crimes Tribunals in Bangladesh.

The full TV programme can be seen here. However, I have extracted out the questions and answers involving me here in order to dispel any misrepresentation of what I had stated in the programme.

Q: (6.33 mins) Tony Cadman, there, saying that an urgent appeal is necessary. [David Bergman] what is your response about what has happened in court? And give us a sense of the feeling on street? We know that there are huge divisions over this issue.

A: It is a complex matter. First thing I think that one ought to be very aware is that these trials are popular within Bangladesh. I mean the opinion polls that have been done about them, show that the vast majority of people support the process of trials seeking the accountability for crimes committed in 1971. And although people do call the country divided, I don’t think it is really fair to say that. There has been a long standing demand from quite a large section of people in Bangladesh for these trials, and that demand has a lot of popularity through the country.

Q: Regardless of whether or not as Toby says the legal procedures have been flawed?

A: I think this actually is exactly the case. It is correct to say that from a fair trial prism,

Rolling Blog on Kamaruzzman execution

This is s rolling blog on the Kamaruzzman execution, which the government is now seeking to go ahead in a short number of days

You need to keep refreshing the page to see updates

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This rolling blog is now finished. And further developments in relation to the execution of Kamaruzzman will be discussed on new pages

Monday, 10 November 2014

11.55 pm: Govt backs down on execution without full judgement
I missed, perhaps the most important news of the day. New Age published a report in the paper this morning which stated that the Attorney General gave a press conference on Sunday in which he said that the government was likely now to wait until the publication of the Appellate Division's full judgement in Kamaruzzman's case before executing him. A similar story was published in the Daily Star.

In the press conference, it appears he first acknowledged that if the government was going to follow the Jail Code, the prison could not take any action without a 'warrant of execution' and this would first require a full appellate court judgement

Secondly, that the government would have to wait for the appellate division's judgement on Molla's rejected application to review in order to find out whether Kamaruzzman could seek a review application of his appeal judgment.

So where does that leave us now.

First, this is a big U-turn by the government, and by the Attorney General. It was only a few days ago that it seemed that the execution was going to be any day. And the government/AG rhetoric left little doubt about their intentions.

Secondly, I would speculate that the main reason for this change of events, was the differences of opinion within the appellate division (nothing unusual about that) concerning the right approach about issuing a short order or not. The government, I imagine had hoped that the court would be willing to issue a short order, but at least one judge was perhaps not in favour of that approach.

Thirdly, whatever was the reason behind the government decision, it is a good one. To have executed Molla before he had a chance to even see the reasons why the court had dismissed the appeal would have been simply wrong, yet alone before giving him a chance to review the decision (when there remains a chance that he has a right to seek a review). It also will have the effect of diluting the international criticism about the execution.

Fourthly, there is the issue of when the appellate division judgement will be issued. In the Molla case the short order was issued in mid September, and the full judgement at the end of November - a period of about 2.5 months. In this case, the judgement does not need to be anywhere near as long since many of the legal issues will have been dealt with in the Molla judgement. So whilst it could take as long as 2.5 months, it it is more likely to take less. A mid-December execution, around victory day is still possible - though it will depend on what the appellate division rules in its decision on Molla's review application.

5.10 pm: BREAKING NEWS: US government calls for halt to Kamaruzzaman execution
In a move that I would gauge will be far from popular amongst many/most in Bangladesh, the United States has called for a halt to the execution of the Jamaat-e-Islami leader Kamaruzzaman. It did so through a statement given by its Ambassador-at-large for Global Criminal Justice, Stephen Rapp a couple of hours ago.

The key part of Rapp's statement, given in a conference call to myself (as a New Age reporter) and a reporter from the biggest newspaper in Bangladesh, Prothom Alo, is as follows:

'As I said during my fifth visit to Bangladesh in August 2013, we have seen some progress, but still believe that further improvements to the International Crimes Tribunal process could ensure these proceedings meet domestic and international obligations. Until these obligations can be shown to have been met, it is best not to proceed with executions given the irreversibility of a death sentence.'

I have written a short article for New Age which includes further comments given by Ambassador Rapp, and will link to it when it comes up on the website. I will also provide further details about what he said later.

Sunday, 9 November 2014

1.30 pm: HRW calls for Halt of execution
Calling the international Crimes Tribunals, 'replete with fair trial concerns', Human rights watch has called for the execution of Kamaruzzaman to be halted. The full text is here.

It first calls on government to allow for a review of the full judgement:

"Kamaruzzaman and his counsel have yet to receive the full text of the final verdict, which is necessary for him to be able to lodge a petition for review of the decision within thirty days, a standard procedure in all death penalty cases. Government officials have indicated that the execution is possible before the full verdict is issued which goes against standard policy in death penalty cases."

It then refers to its opposition to the death penalty in all circumstances, but states that such a sentence

“is particularly problematic when proceedings do not meet fair trial standards and where the right to appeal against a death sentence by an independent court is not allowed.”

In relation to fair trial concerns, it states:

Human Rights Watch noted that trials before the ICT, including that of Kamaruzzaman, have been replete with fair trial concerns. In Kamaruzzaman’s case, defense evidence, including witnesses and documents, were arbitrarily limited. Inconsistent prior and subsequent statements of critical witnesses were rejected by the court, denying the defense a chance to challenge the credibility of prosecution witnesses. An application by the defence to recuse two judges for prior bias was summarily rejected.

This follows a disturbing precedent from other cases. In December 2013, Abdul Qader Mollah was hanged following hastily enacted retrospective legislation which is prohibited by international law. Another accused, Delwar Hossain Sayedee, was convicted in spite of credible allegations of the abduction by state forces of a key defence witness with the ICT refusing to order an independent investigation into the charge. Many of the trials have been marred by the evidence of intercepted communications between the prosecution and the judges which reveal prohibited contact. The ICT’s response on several occasions to those who raise objections about the trials has been to file contempt charges against them in an apparent attempt to silence criticism rather than answer substantively or indeed, to rectify any errors.

Delay in appellate division judgment creates uncertainty over right of review

This article was published on 4 November in New Age. See:
- this page for what happens next for Kamaruzzman and
- this page for the offence for which he was sentenced to death.

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Delay in AD judgement creates uncertainty over review legality

David Bergman

The continuing delay in the publication of the appellate court’s December 2013 judgment rejecting Abdul Quader Molla’s last minute ‘appeal’ to overturn his death sentence has created uncertainty about whether those convicted by the International Crimes Tribunal can seek a review of an appellate court decision.
This has become significant in light of Monday’s decision by the court to uphold one of the death sentences imposed by the Tribunal against Jamaat leader Kamaruzzaman, and the intention of the defence lawyers to review this decision and September’s appellate court decision to uphold convictions against Delwar Hossain Sayedee.

Daily Star misfires on Jamaat lobbying article

The Daily Star has a story on its front page which fails in almost every way to meet the newspaper's normally high editorial standards.

The story is titled, '$25m helped, not that much' and claims that Mir Qasem Ali struck a $25 million deal with with a US lobby company, which it said was unlawful since there had been no registration of the contract as required by US law. The paper says that it has a copy of the contract, and the only person it quotes is an anoymous 'Washingon-based journalist' to say that the amount is 'huge' and that it was unlawful

You know something is wrong with an article as soon as you see a quote from an anonymous journalist in a context where there is absolutely no reason at all for the person to be anonymous. Indeed, it is not clear why a 'Washington journalist' was in any way appropriate person to speak on this issue. What expertise does any old Washington based jouranlist have? Surely a regulator, or a lawyer who deals with the law relating to lobbyists, would have been appropriate - and then there would be no reason for that person to be anonymous.

Also, of course there is the failure to get any comment from the Jamaat or the lobbying company alleged to have received $25 million.*

However, these are the least of the problems with the article.

Lobbying by Mir Quasem Ali, the New Age expose

This page should be read in conjunction with this one.

Here are the two articles published by New Age back in October 2011 on lobbying by Mir Quassem Ali (sentenced to death yesterday for two 1971 offences) and his brother in the United States

Jamaat leader hires US firm to lobbywar crimes trial (29 Oct, 2011)

David Bergman
A senior Bangladesh Jamaat-e-Islami leader, Mir Quasem Ali, along with his US-based brother Mir Masum Ali, in the past year spent $310,000 (Tk 24 million) hiring one of the top United States lobbying firms to try and influence the country’s politicians and government officials on the ‘Bangladeshi War Crimes Tribunal’ and issues relating to the ‘political opposition,’ according to documents lodged with the US congress.
In March 2010, the Awami League government set up the International Crimes Tribunal to prosecute people alleged to have committed war crimes during the 1971 war of independence.
Since its establishment, the tribunal has detained seven men, five of whom are leaders of the Bangladesh Jamaat-e-Islami.
Quasem Ali, a successful businessman, is a member of both Jamaat’s 15-member central executive committee and its working committee.

Kamaruzzaman - the Sohagpur mass killing

This is an extract from the International Crimes Tribunal judgment dealing with charge no 3 for which it had imposed a death penalty, a sentence that was upheld today by the appellate division.

To read about what happens next to Kamaruzzaman, click here

To access the full judgement, click here

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Adjudication of Charge No. 3 [Sohagpur mass killing]

291. Summary Charge: During the period of War of Liberation, on 25.7.1971 in the early morning, accused Muhammad Kamaruzzaman being chief organiser of Al-Badar Bahini as well as leader of Islami Chatra Sangha or member of group of individuals advised your accomplices belonging to Al- Badar and Razaker Bahini who accompanied the Pak army in contemplating and taking steps towards commission of large scale massacre, to raid the village Sohagpur and accordingly they launched planned attack and murdered about 120 unarmed civilians including the 44 victims as named in the paragraph 8.7 of the Formal Charge and committed rape upon women of the said village and thereby Muhammad Kamaruzzaman has been charged for participating, substantially facilitating and contributing to the commission of offences of ‘murder as crime against humanity’ or in the alternative for ‘complicity to commit such crime’ as specified in section 3(2)(a)(h) of the Act,1973 which are punishable under section 20(2) read with section 3(1) of the Act.

Witnesses

292. Prosecution adduced and examined as many as 05 witnesses in order to substantiate this charge. Of them P.W.11, P.W.12 and P.W.13 are the victims of sex violence who have been examined in camera as prayed by the prosecution. P.W.2 Monwar Hossain @Mohan Munshi was a member of Al- Badar and at the relevant time he had been working as a guard of Al-Badar camp set up at Suren Saha’s house, Sherpur and he had opportunity to see and know the activities of accused Muhammad Kamaruzzaman who was the leader of the camp, as claimed. P.W.10 Md. Jalal Uddin [one of victims of the massacre] is the son of martyr Safir Uddin of crime village Sohagpur. He narrated the horrendous event of massacre.

Kamruzzaman death sentence upheld, what happens next

Md Kamaruzzaman, death penalty upheld

With the appellate division today upholding, by a majority decision, the death sentence on the Jamaat leader, Kamaruzzaman for charge no 3 (the death penalty for charge 4 was commuted to life imprisonment) what happens now?

First of all, court precedent suggests that nothing will happen on the basis of this 'short order'. The carrying out of the death sentence will have to wait until until the full written judgement is given, and this can be quite some time. In the case of Molla, the short order was given in September 2013, and the written judgement in late November, a few months later.

Secondly, the defence will seek a review of the decision (Tajul Mohammed, the defence lawyer has already said that). Since there has been no written decision on the application by the defence lawyers in relation to its application seeking a review of the Abdul Quader Molla appellate division decision, it remains unclear whether the court accepts the right of the defence lawyers to seek such a review.

However, even if the court does accept a review application, this may add an extra few days to the process, but is very very unlikely to stall it (see below)

Thirdly, since the position of the government (and it appears the court) is that the jail code does not apply to those convicted by the ICT, once the full written judgement is given, the process towards the carrying out of a death sentence, if that is what the government wants to happen, can be quite swift.

On the issue of the review of an appellate division decision, I am setting out below what I have earlier written in the context of Sayedee

Article 105 of the constitution sets out the power of the appellate division to review its judgment. This Article states:

The Appellate Division shall have power, subject to the provisions of any Act of Parliament and of any rules made by that division to review any judgment pronounced or order made by it. 

Order 26 of the Appellate Division rules sets out the procedure for this.

1. Subject to the law and the practice of the Court, the Court may, either of its own motion or on the application of a party to a proceeding, review its judgment or order in a Civil proceeding on grounds similar to those mentioned in Order XL VII, rule 1 of the 'Code of Civil Procedure and in a Criminal proceeding on the ground of an error apparent on the face of the record. (emphasis added)
2. Applications for review shall be filed in the Registry within thirty days after pronouncement of the judgment, or, as the case may be, the making of the order, which is sought to be reviewed.The applicant shall, after filing the application {or review, forthwith give notice thereof to the other party and endorse a copy of such notice to the Registry.
3. Every application for review shall be accompanied by a certified copy of the judgment or order complained of and when the application proceeds on the ground of a discovery of fresh evidence certified copies of the documents, if any relied upon, shall be annexed to the application, together with an affidavit setting forth the circumstances under which such discovery has been made.
4. No such application shall be entertained unless it is signed by a Senior Advocate who, in this behalf: shall not be governed by the restrictions contained in clause 2 of the First Schedule to these rules.
5. The Senior Advocate signing the application shall specify in brief the points upon which the prayer for review is based, and shall add a certificate to the effect, that consistently with the law and practice of the Court, a review would be justifiable in the case. The certificate shall be in the form of a reasoned opinion.
6. Except with the special leave of the Court, no application for review shall be drawn by any Advocate other than the Advocate who appeared at the hearing of the case in which the judgment or order, sought to be reviewed, was made. Such Advocate shall, unless his presence has been dispensed with by the Court, be present at the hearing of the application for review.
7. As far as practicable the application for review shall be posted before the aame Bench that delivered the judgment or order sought to be reviewed. (emphasis added)
8.. After the final disposal of the first application for review no subsequent application for review shall lie to the Court and consequently shall not be entertained by the Registry.
9. No application for review shall be entertained unless party seeking review furnishes a cash security of [Tk.lO,OOO], which shall be liable to be forfeited [if the review petition] is dismissed. (emphasis added) 

The following should be noted about the 'review':
- there are very limited grounds that can allow a review of an appellate division decision to be successful: there has to be an 'error apparent on the face of the record' which in case law is drawn very narrowly. 

- it is not an appeal. It is heard by the same bench of judges that made the order which is in question. So the applicant is asking the same set of judges to accept that they made a serious error! As one cam imagine, successful appellate division reviews are therefore very uncommon. 

- The International Crimes Tribunal gave itself the power to review its decisions and although it has dealt with dozens and dozens of applications for review, I am not aware of a single decision that was fully overturned. 

In the Molla case, the defence argued that the accused had a right to review under article 105, but the attorney general argued that it did not - claiming that the limits of the an accused's right to appeal are set out in the International Crimes (Tribunal) Act 1973, due to Article 47(3) of the constitution which precludes a person accused of international crimes from seeking any constitutional remedy. In the Molla case, the appellate division did not clarify whether there was a right to review or not - dismissing the review application without passing a reasoned order.

Support for the War Crimes Trials

The Daily Star editor Mahfuz Anam's recent article on the International Crimes Tribunal's recent judgment on Nizami, which is in strong support of the process, has criticised the idea that the  'country is divided' about the tribunals, arguing in fact they have widespread support

'An insidious campaign is now afoot claiming that our nation is divided on the war crimes trial. Such a view is without any substance and it is our duty to renounce it forcefully. ... [T]o the best of our knowledge, and based on opinions of the hundreds of thousands who read us and interact with us, we have absolutely no doubt that our nation is fully committed behind this trial and there is a great deal of support for holding people accountable for the crimes committed in 1971.'

How accurate is Anam in this analysis?

In 2013, a number of opinion polls were conducted which inter alia asked questions on the support for the tribunals (as well as for the Shah-bag protests), and whilst there are some nuances, they do clearly show that there was at least then vast support for the process - even though a majority of people at the same time thought they were not fair.