Friday, February 27, 2015

Throw yourselves "at the mercy of this Tribunal"

Below is the most recent order of the International Crimes Tribunal passed on 23 February 2015,  in relation to action that the Tribunal has taken against 49 Bangladeshis who were signatories of a statement (published in the Bangladesh news paper Prothom Alo) which commented on a judgement given earlier by the tribunal involving contempt of court.

To read (a)  last order of the court involving the New York Times, click here, and (b) the previous sequence of orders, click here

The order passed on 23 February 2015
- accepted the 'unconditional' apology given by two of the signatories "for any dishonor that may have denigrate the dignity and majesty of this Tribunal (sic)" having "thrown themselves at the mercy of this Tribunal."
- allowed the apologies of 12 others to be accepted after they amended their text so that it contained no justification at all of the statement, and contained an unconditional apology and a submission to 'the mercy of the Tribunal;
- 35 other signatories were allowed until 3 March to clarify their position
- the New York Times, which had not responded to the Tribunal's order has also been given until 3 March to explain its editorial commenting on the same order.
- stated that my conduct "was a flagrant onslaught on the independence of the judiciary, destructive of the orderly administration of justice and a challenge to the supremacy of the Rule of Law."
The full order is set out in full below and can also be accessed here:
By order dated 14.01.2015 this Tribunal asked 49 Citizens who had voiced their concern by making statements in “the Daily Prothom Alo” dated 20.12.2014 over awarding punishment to David Bergman-a British national to explain their conduct and position. In view of such order the citizenry have furnished their explanation by engaging counsels as well as in person. Today, following our order dated 08.02.2015 the maker of the statements at home, entered their appearance before this Tribunal. Now, the record is taken up for passing Order.

We have very meticulously perused the article titled “ Bargmen er Shajai Ponchash Nagoriker Udbek” published on 20.12.2014 in the ‘Daily Prothom Alo’, being evolved from an undated testimonial that jointly shared by all those personalities under the caption “Statement of Concern regarding Tribunal’s Contempt Judgement on David Bergman”- so submitted on 31.12.2014 by its ( the Daily Prothom Alo) Editor and each and every explanations. Since we find the tone and tenor of the explanations submitted, is not identical, we seem it expedient to evaluate the explanations independently in the following manner:

First, Dr. Shahdeen Malik, a practicing Lawyer of Supreme Court, Bangladesh in his explanation did not justify the contents that has been published in the Daily Prothom Alo’ dated 20.12.2014 rather has tendered unconditional apology before this Tribunal for any dishonor that may have denigrate the dignity and majesty of this Tribunal. In similar vein, Mr. Hafizuddin Khan, a retired Comptroller and Auditor General, Government of Bangladesh and an ex-advisor to the Care Taker Government Bangladesh has also craved unconditional apology for his concern, he ventilated over awarding the verdict against David Bergman, published. Eventually, both have thrown themselves at the mercy of this Tribunal.

On going through their respective explanation, we at least do not find anything therein as to what prompted them to voice such concern and share the views through issuing a ‘statement’ under the heading “Statement of Concern regarding Tribunal’s Contempt Judgement on David Bergman” that has been published.

The statement in question did not reflect that the makers to it had gone through the decision convicting David Bergman. We think that they would not have made them party to such statement if really had they taken pain in going through the entire decision of the Tribunal.

Conduct of the convicted journalist was a flagrant onslaught on the independence of the judiciary, destructive of the orderly administration of justice and a challenge to the supremacy of the Rule of Law. The maxim "Salus populi suprema lex", that is "the welfare of the people is the supreme law" adequately enunciates the idea of law. This can be achieved only when justice is administered lawfully, judicially, without fear or favour and without being hampered and thwarted, and this cannot be effective unless respect for it is fostered and maintained. We believe that the notable citizens who have tendered apology for their conduct they have shown in the ‘statement’ have been now able to perceive this settled norms and responsibility.

We firmly believe, both the citizens by this time, have earned high esteem and eminence in their respective fields for their immense contribution towards the society and the nation as well by their invaluable analysis on contemporary national issues telecast and broadcast both in electronic and print media as well as in different seminar and symposium for not gaining themselves but for the cause of nation’s upliftment. We thus, fervently hope, in future, they will be more careful in making or sharing any statement that could ever disparage the authority and dignity of the Court of law.

Above all, they have figured out their imprecision in sharing and making statements, called in question. Their such introspection has not only upgraded the majesty of the Tribunal but also signify their utmost admiration to the process of the administration of justice that will invariably usher reposing faith by the general mass on the fairness of court of law in dispensing justice. In such a parlance, we accept the apology tendered by Dr. Shahdeen Malik and Mr. Hafizuddin Khan finding it just and proper for their remorseful disposition and accordingly, we exonerate them from further prosecution.

From the statements of 12 citizens named, Zakir Hossain-human rights activists, Shahnaz Huda-academic, Badiul Alam Majumder- social activist, Imtiaz Ahamed- teacher, Rasheda Khatun- development Practitioner, Naila Khan-Professor,Child Neurology, Ilira Dewan-Private Service holder, Amena Akter Mohshin-teacher, Asif Nazrul-academic, Syeda Rizwana Hasan-academic, Arup Rahee- Private Service holder and Shahina Akhter- Private Service holder though have furnished their explanation separately but their assertion are entirely similar.

In cumulative analysis of paragraph 4 of their explanation, we hold the view that, they have strenuously attempted to justify the correctness of the core-essence of ‘statement’ –that called in question in the instant proceeding and in a very stray manner they sought ‘apology’ leaving it to the prudence of this Tribunal to consider whether their such venture ever constitute contempt of the Tribunal.

When the Tribunal was about to pass the order on the explanation given by these 13 citizens their engaged lawyer Mr. Jotirmoy Barua apprised the Tribunal that his clients are repentant for the statement they made and want to submit them to the mercy of the Tribunal by expressing unconditional apology and for this reason they want 30 minutes time to amend their written explanation.

After allowing the prayer out of 13, 12 citizens have expressed their remorseful unconditional apology to the Tribunal almost in the similar words spelt out by Mr. Shahdeen Malik & Mr. M. Hafizuddin. We are inclined to accept their unconditional apology. Accordingly we exonerate them also from the prosecution.

Ms. Nihad Kabir, the learned advocate representing 14 citizens namely Ms Seuty Sabur, Ms. Faustina Pereira, Mr. Masud Khan, Md. Nur Khan, Mr. Mohiuddin Ahmed, Mr. Afsan Chowdhury, Ms. Firdous Azim, Mr. Ziaur Rahman, Ms. Hana Sams Ahmed, Mr. Anu Muhammad, Ms. Samia Huq, Ms. Anusheh Anadil, Ms. Lubna Marium, Ms. Muktasree Chakma Sathi prayed for some time to take further instructions from her clients to clarify their position. She also prayed time for the same reason on behalf of Ms. Tahmima Anam presently who is residing abroad.

Ms. Shirin Huq with a similar contention prayed for some more time on behalf of herself and rest 7 persons who are appearing in the Court in person.

Mr. Mainul Haque, the learned advocate appeared for Dr. Perveen Hassan also prayed for short adjournment to clarify her position.

Considering all aspects, we are of the view that justice would be met if the aforesaid 35 persons are given some more time to clarify their position. Accordingly, the verbal prayers made by the learned advocates and Ms. Shirin Huq are allowed. They are directed to clarify their position by 3rd March, 2015.

We have also received information from the Ministry of Foreign Affairs regarding service of notice upon the international Daily "New York Times". It appears that Bangladesh Mission in Washington has already communicated the Tribunal's order with the Editorial Board of the "New York Times" an international newspaper published from USA, but they have not responded yet.

New York Times is further asked to explain its conduct regarding publishing the article "Muzzling Speech in Bangladesh' and other comments made by it regarding Mr. Bergman's sentence and conviction by 3rd March 2015.

The office is directed to post this order in the website of the Tribunal and to send the copy of this order to the Ministry of Foreign Affairs to communicate with the same to the Bangladesh Mission in USA so that they can send the copy of the said order to the concerned authority of the international Daily New York Times.

Office is also directed to send the copy of this order to the persons staying aboard through our Missions of the respective countries.

Saturday, February 21, 2015

Geoffrey Robertson report 2 - Pakistani military crimes

This is the second post on the Geoffrey Robertson QC report reviewing the International Crimes Tribunal. The first one, concerning the independence of the report, can be seen here. The full report can be accessed here. 

This post looks at what it has to say about the Pakistan military - to some extent a forgotten party when it comes to issues of accountability for crimes committed during Bangladesh's 1971 War of Independence.

This section of the report - which excoriates the Pakistan military, and calls for the investigation of their crimes as well as their prosecution (and please note all italicized emphasis has been added) does supports Robertson's claim that he is coming to this report with an independent mind.

Crimes committed by the Pakistan military
Robertson strongly criticizes the Pakistan military. In relation to 'operation search light', which was the action taken by the Pakistan military on 25 March 1971, at the very beginning of the war, he says (at p.31):
Without doubt, “Operation Searchlight” was a crime against humanity: a deliberate and systematic attack on a civilian population by the state and its military agency, which killed and seriously injured thousands of men, women and children (the exact number is impossible to estimate). It went far beyond any conceivable defence of “military necessity”: the government had the option of continuing negotiations, of imposing martial law, or (if there was any evidence of a treasonable conspiracy) of interning or prosecuting the Awami League leaders. Instead it opted to terrorise the civilians of Dhaka by persecuting intellectuals and community leaders, killing law enforcement officers and making genocidal attacks on Hindus that forced millions of them to flee the country. Although the operation lasted only 48 hours, it remains an international crime whose perpetrators have never been punished.  
President Yahya Khan, who gave the order, was replaced by Bhutto after Pakistan’s surrender to India in December 1971. He was put under house arrest, but this disgrace was punishment for losing the war and not for unleashing “Searchlight”. For that crime he was never prosecuted, and he died in 1980. General Tikka Khan, architect of the operation and commander of the eastern military, bears even greater responsibility than his President: he was not drunk and was not stupid. His callous calculations of the groups to be killed – Professors and students, non- Urdu speakers, Hindus - made this “Butcher of Bengal” as guilty as General Mladic, the Bosnian Serb who “ethnically cleansed” Srebrenica. Tikka Khan went straight into Bhutto’s cabinet, as Defence Minister and later (after Bhutto’s own execution in 1979) became Secretary General of the P.P.P. and later the Governor of the Punjab. When he died in 2002, he was given a State funeral with full military honours. Considering how high his reputation still stands in Pakistan, he might be an appropriate candidate for a posthumous prosecution – to set out authoritatively the calculated inhumanity of “Operation Searchlight”.
There is a footnote to the question of 'posthumous' (i.e one following the death of a person) prosecution which states
International Courts have never been tasked with posthumous prosecutions, although the Lebanon Tribunal is undertaking trials in absentia and there is not much difference – indeed, a posthumous prosecution would be a form of in absentia proceeding, in which the deceased would be represented as effectively as possible, the prosecution wouldcollect and present damning evidence which might not otherwise be made public, and the judges would deliver a verdict that would carry weight with historians. Any unfairness would be mitigated, unlike the Bangladesh Tribunal in absentia trials, (see later) by the fact that the defendant could not be execute or suffer at all, other than by an indelible blot on an undeserved posthumous reputation.
The report goes on (at p.33) to look at the Pakistan military operations after 'operation searchlight'.
“Operation Searchlight”, concentrated in Dhaka, had not restored calm: it turned what was a constitutional debate into one of the twentieth century’s most brutal civil wars. The army began it, and once it realised that the “whiff of grapeshot” had set off a Bengal-wide conflagration, it inhumanely and foolishly decided to replicate the attacks throughout the country, targeting Awami League members, students and intellectuals, and Hindus. When rebel-held Bengali towns were captured, the civilians were massacred – men, women and children, with some of the cruellest killings carried out by local Biharis, in revenge for massacres that they had suffered at the hands of the Mukti Bahini. As the year dragged on, the army (now commanded by General Niazi) committed atrocity after atrocity. Civilians (especially Hindus) who had been captured were then lined up for execution on the banks of rivers, which would wash their blood away, as well as their bodies. Evidence (some from Pakistan’s own judicial enquiry) confirms that Hindus as such were specifically targeted in army commands thus supporting the US Consulate allegation of genocide.
(This paragraph refers in a footnote to the the International Commission of Jurists report, 'The events in East Pakistan, 1971')

The report carries on to refer to an important distinction between the Pakistan military's violence and the initial violence of Bengalis against the Biharis
There was mob violence on the other side, involving Bengali mob attacks on Biharis who were seen as army accomplices. As the International Commission of Jurists notes, however “The atrocities committed against the population of East Pakistan were part of a deliberate policy by a disciplined force. As such they differed in character from the mob violence committed at times by the Bengali’s against the Bihari’s”.
The report though does goes onto state that "as the year progressed and the Mukti Bahini struck back with assistance from India, this force of nationalist fighters was also guilty of atrocities and of atrocities that were in some cases no different in kind or description to those which are being punished in the ICT."

Holding the Pakistan military to accounts
The report also considers the issue of the criminal accountability of the Pakistan military officers, narrating how they avoided prosecution in Bangladesh. Significantly, it comes to the conclusion that (a) no amnesty was provided to them; (b) the UN should set up an ad hoc international criminal tribunal responsible for their investigation and prosecution and (c) the Bangladesh government should seek reparations from the Pakistan government.

On p.45 the report starts the story in the following way: 
"On April 17, 1973, the State of Bangladesh announced that it would proceed to try [the 195 army officers held in India] “for genocide, war crimes, crimes against humanity, breaches of Article 3 of the Geneva Convention, murder, rape and arson”. The government’s press release explained: “Trials shall be held in Dhaka before a Special Tribunal, consisting of judges having the status of judges of the Supreme Court. The trials will be held in accordance with universally recognised judicial norms. Eminent international jurists will be invited to observe the trials. The accused will be offered facilities to arrange for their defence and to engage counsel of their choice, including foreign counsel.”  …. although the legislation which established this tribunal promised trials that were fair according to the standards of the time, any form of foreign trial of its army officers was a spectacle that Pakistan was not prepared to accept. It claimed that such a trial would be in breach of Article 118 of the Geneva  Convention, although Article 119 makes clear that prisoners of war must face trial for war crimes,  so long as that trial is fair. It also disputed Bangladesh’s jurisdiction, because “the alleged criminal acts were committed in a part of Pakistan”. This does not prevent a successor state - or any other state – taking jurisdiction to try war crimes, genocide, or crimes against humanity. Nonetheless, Pakistan launched a legal action at the International Court of Justice in an attempt to stop the trials of its army officers, and Bhutto sneered that the Tribunal would deliver “palm tree justice” - which he threatened to emulate by putting some of the stranded Bengalis on trial for treason. There were fears that the army would again run amok if its senior officers faced justice, even international justice, and some UN members (most notably China, nervous about the prospect of retribution for its own massacres in Tibet in 1960) denounced the proposed trials as a breach of the UN Charter - which of course they were not, although the UN had turned a blind eye while international crimes were being perpetrated by Pakistan’s army. 
In the end, diplomacy diffused the crisis with its usual compromises and lack of attention to principle. There was a “Tripartite Conference” between India, Pakistan and Bangladesh convened in April 1974. Sheikh Mujibur spoke of reconciliation and agreed to drop his demand to put the 195 army officers on trial. In return, he received an apology from Pakistan, which “condemned and deeply regretted any crimes that may have been committed”99 and renewed a pledge to “constitute a judicial Tribunal of such character and composition as will inspire international confidence” to consider evidence of army criminality.  
And so the Delhi deal was done, and the 195 alleged war criminals were repatriated to Pakistan,where of course they were never put on any sort of trial. Bhutto had set up an Inquiry, chaired by Chief Justice, Hammodur Rahman, into the East Pakistan military disaster, and had hint that they might be prosecuted on its recommendations, but he had no intention of following through and in any event he was afraid to challenge the army, beyond retiring some of the officer responsible for the defeat. He received the Judicial Commission’s report – which was so devastating that he dared not publish it - and actually promoted Tikka Khan who had been responsible for “Operation Searchlight”. Bhutto needed the army to maintain internal order, and it did not object when he secured the release of its officers in return for recognising Bangladesh.
The report then goes on at p.47 to state that:
Surprisingly, and probably by oversight, the ICTA was not repealed. 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.
In the conclusion of the report (at p.120), 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 (at p.122) 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."

Thursday, February 19, 2015

Geoffrey Robertson QC report 1 - the question of independence

The International Forum for Democracy and Human Rights has published a report written by Geoffrey Robertson QC on the International Crimes Tribunal in Bangladesh.

It is a detailed 124 page report which should be read by anyone interested in the 1971 war and the ICT in Bangladesh.

I shall write a number of posts on this report - but this first post looks solely at the extent to which one can view the report as 'independent' (and 'authoritative') which is how it has been presented. The second post on Pakistani military crimes can be seen here

In a note at the beginning of the report,  it is stated that:
"This report has been commissioned and published by the International Forum for Democracy and Human Rights, a group of international lawyers some of whose members have been involved in giving advice to counsel defending those accused in the International Crimes Tribunal in Bangladesh."
And in his introduction, Robertson adds that
"… I was approached in March 2014 by by Toby Cadman, one of the English barristers who had been advising the defence (necessarily, from abroad) and asked to review all the cases concluded so far and to provide an independent opinion on their fairness and on the Tribunal’s proceedings and conduct. To this end I have been provided with several thousand pages of court transcripts and have acquainted myself with the historical background both to the 1971 massacres and to the initial attempt to prosecute collaborators in 1972-3. I make no findings as to the guilt or innocence of the men who have already been convicted by this Tribunal, as I have not attended their trials – my concern is with the procedures adopted by the court and the pressure brought upon it by the government, which might conduce to miscarriages of justice.

Wednesday, February 11, 2015

New York Times asked to explain 'unwarranted and derogatory comment'

The International Crimes Tribunal-2 has today issued a further order in the case relating to a statement given by 49 Bangladeshis (published in the Bangladesh news paper Prothom Alo) which commented on a judgement given earlier by the tribunal involving contempt of court. 

To see the previous sequence of orders on this matter click here

This order seeks an explanation from the New York Times about its "unwarranted and derogatory comment" about the tribunal in an editorial on 23 December 2014.

The order states that "prima facie", the "core content of the editorial" represents "a classical example … of demean[ing] the judiciary of a sovereign country."

The paper is asked to respond to the court by the 20 February, and an order will be passed on 23 February. The full order is set out below, and can also be accessed here:

ICT BD (ICT-2) Misc. Case No.04 of 2014 Order No.08

Dated 11.02.2015 
1. This Tribunal [ICT-2] took notice of the editorial published in the  New York Times [Muzzling Speech in Bangladesh By THE EDITORIAL BOARD DEC. 23, 2014] by its order dated 28.12.2014 together with the news item published in the daily Prothom Alo, 20 December 2014, page 2.  
2. Both involved criticism on the decision of this Tribunal convicting a journalist David Bergman for the offence of contempt under the provisions of the International Crimes (Tribunals) Act 1973. The news item published in our national daily relates to ‘statement’ made by 49 citizens expressing their concern on the matter. Already they in compliance with the Tribunal’s order have furnished explanation in respect of their conduct expressing ‘apology’ and ‘regret’. Those have been kept with the record for further order.

3. It appears that the core content of the editorial published in the New York Times [Muzzling Speech in Bangladesh By THE EDITORIAL BOARD DEC. 23, 2014] constitutes a classical example not only of endorsing a punished contemnor’s conduct who found guilty for the charge of scandalising the Tribunal a lawfully formed judicial forum -- but the view expressed in the editorial tends to demean the judiciary of a sovereign country, Bangladesh, prima facie appears.

4. The editorial states that--‘it [Tribunal] should immediately overturn Mr. Bergman’s sentence’. We fail to understand how such asking by a daily news paper of international repute is made. A judicial order cannot be ‘overturned’ on own motion. There can be no room to urge it arbitrarily by any body for overturn’ the sentence without going through any accepted legal process.

5. The Tribunal exercised its judicial power as prescribed by law [The Act of 1973 enacted by the sovereign parliament of Bangladesh] and the Tribunal is quite independent in the exercise of its  functions subject only to the Constitution and to the law. We welcome post judgment criticism. But the Tribunal is at the same time empowered even to protect the notion of administration of justice in the mind of public if such criticism subverts it.

6. In view of above, at this stage we deem it expedient to have explanation, if any, on part of the New York Times for the unwarranted and derogatory comment it made in its editorial titled ‘Muzzling Speech in Bangladesh’ published by the Editorial Board Dec. 23, 2014 to dispose of the matter analogously with that related to the ‘statement’ made by 49 citizens published as a news item in a local national daily..

7. Accordingly, the New York Times is asked to submit their explanation through the Bangladesh Mission in New York, USA. For necessary compliance, in this regard, let copy of this order be transmitted to the appropriate authority of the New York Times through the Ministry of Foreign Affairs, Government of Bangladesh, Dhaka.

8. The Ministry of Foreign Affairs will collect the explanation, if any, through the Bangladesh Mission in USA and on receipt it the same shall be submitted to the Registrar of the Tribunal on or before 20.2.2015. Even in case of non response on part of the New York Times, the Bangladesh Mission in USA shall make this Tribunal informed of it through the Ministry of Foreign Affairs, Government of Bangladesh by the date as mentioned above.

9. The Secretary, Ministry of Foreign Affairs, Government of Bangladesh is asked to take immediate and necessary measure for compliance of this order. The Registrar of the Tribunal is directed to do the needful at once.

Let this matter be posted in the daily cause list on 23.02.2015 for passing necessary order.

Sd/-Justice Obaidul Hassan, Chairman Justice Mozibur Rahman Miah, Member Justice Md. Shahinur Islam, Member

It might be noted that Tribunal-1 has previously taken action against the Economist and against Human Rights Watch