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tag:blogger.com,1999:blog-67722598827488928572023-12-09T17:06:16.848+06:00Bangladesh War Crimes TribunalDavid Bergmanhttp://email@example.com:blogger.com,1999:blog-6772259882748892857.post-2336490585633175912016-09-04T17:56:00.000+06:002016-09-05T00:33:38.845+06:00Ten 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 abcnewsreportsnow.com 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

 David Bergmanhttp://email@example.com:blogger.com,1999:blog-6772259882748892857.post-13210187382884879142016-03-06T21:05:00.000+06:002016-03-07T10:24:07.603+06:00The 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.

 David Bergmanhttp://email@example.com:blogger.com,1999:blog-6772259882748892857.post-91664283327173037462016-03-06T11:52:00.001+06:002016-03-06T11:52:28.202+06:00The 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.

 David Bergmanhttp://firstname.lastname@example.com:blogger.com,1999:blog-6772259882748892857.post-6530822082080528462015-12-03T00:28:00.000+06:002015-12-03T08:01:48.878+06:00"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."

 "There were verbal instructions to eliminate Hindus. In Salda Nadi area about 500 persons were killed."

 "When the army moved to clear the rural areas and small towns, it moved in a ruthless manner, destroying, burning and killing."

 "People were picked up from their homes on suspicion and dispatched to Bangladesh, a term used to describe summary executions."

 "Brigadier Arbbab also told me to destroy all houses in Joydepur. "

 "In May, there was an order in writing to kill Hindus."

 "A man had no remedy if he was on the wanted list of the Army"

 The report also states:

 "We are of the considered opinion that it is necessary for the Government of Pakistan to take effective action to punish this who were responsible for the commission of these alleged excesses and atrocities."

 The Inquiry

 The purpose of the inquiry itself was to find out how Pakistan lost the war:

 "the circumstances in which the Commander, Eastern command, surrendered and the members of the Armed Forces of Pakistan under his command laid down their arms and a cease-fire was ordered along the borders of West Pakistan and India and along the cease-fire line in the State of Jammu and Kashmir."

 However, as part of that the final report, contained a chapter on 'Alleged Atrocities by the Pakistan Army'. Para 1 stated:

 As is well known, the conduct of the Pakistani army, while engaged in counter-insurgency measures in East Pakistan since March 1971, has come in for a lot of criticism from several quarters.
 After setting out the nature of alleged atrocities committed by the 'Awami League militants' during the month leading up to the beginning of the war on 25/26 March 1971, it then set out the nature of the allegations against the Pakistan army (para 8).

 According to the allegations generally made, the excesses committed by the Pakistani Army fall into the following categories:
 a) Excessive use of force and fire power in Dacca during the night of the 25th and 26th of March 1971 when the military operation was launched.
 b) Senseless and wanton arson and killings in the countryside during the course of the "sweeping operations" following the military action.
 c) Killing of intellectuals and professionals like doctors, engineers, etc and burying them in mass graves not only during early phases of the military action but also during the critical days of the war in December 1971.
 d) Killing of Bengali Officers and men of the units of the East Bengal Regiment, East Pakistan Rifles and the East Pakistan Police Force in the process of disarming them, or on pretence of quelling their rebellion.
 e) Killing of East Pakistani civilian officers, businessmen and industrialists, or their mysterious disappearance from their homes by or at the instance of Army Officers performing Martial Law duties.
 f) Raping of a large number of East Pakistani women by the officers and men of the Pakistan army as a deliberate act of revenge, retaliation and torture.
 g) Deliberate killing of members of the Hindu minority.
 The report then says that

 In view of the seriousness of the allegations, their persistence and their international impact as well as their fundamental importance from the point of view of moral and mental discipline of the Pakistan Army, we made it a point of questioning the repatriated officers at some length in this behalf.

 The report then sets out "some typical statements made before us by responsible military and civil officers". Here are some of the relevant extracts:

 The statement of army and civilian officers

 The report refers to the evidence given by 12 officers

 Lt. Gen. A.A.K. Niazi: The report prefaces Niazi's comments by saying that the Lt Gen was probably seeking to place the blame on his predecessor, Tikka Khan. He is quoted as saying:

 "military action was based on use of force primarily, and at many places indiscriminate use of force was resorted to which alienated the public against the Army. Damage done during those early days of the military action could never be repaired, and earned for the military leaders names such as "Changez Khan" and "Butcher of East Pakistan." (emphasis added)

 He then claims that such crimes came to an end when he came to power:

 "on the assumption of command I was very much concerned with the discipline of troops, and on 15th of April, 1971, that is within four days of my command, I addressed a letter to all formations located in the area and insisted that loot, rape, arson, killing of people at random must stop and a high standard of discipline should be maintained. I had come to know that looted material had been sent to West Pakistan which included cars, refrigerators and air conditioners etc." (emphasis added)

 Maj. Gen. Rao Barman Ali. He was the Adviser to the Governor of East Pakistan:

 "Harrowing tales of rape, loot, arson, harassment, and of insulting and degrading behaviour were narrated in general terms. I wrote out an instruction to act as a guide for decent behaviour and recommended action required to be taken to win over the hearts of the people. This instruction under General Tikka Khan's signature was sent to Eastern Command. I found that General Tikka's position was also deliberately undermined and his instructions ignored...excesses were explained away by false and concocted stories and figures." (emphasis added)
 Brigadier Shah Abdul Qasim. He gave a statement to the commission on "the use of excessive force on the night between the 25th and 26th March 1971". He is quoted as saying that:

 "no pitched battle was fought on the 25th of March in Dacca. Excessive force was used on that night. Army personnel acted under the influence of revenge and anger during the military operation." (emphasis added)

 Brigadier Mian Taskeenuddin. The report quotes the Brigadier as saying:

 "Many junior and other officers took the law into their own hands to deal with the so called miscreants. There have been cases of interrogation of miscreants which were far more severe in character than normal and in some cases blatantly in front of the public. The discipline of the Pakistani army as was generally understood had broken down. In a command area (Dhoom Ghat) between September and October miscreants were killed by firing squads. On coming to know about it I stopped the same forthwith." (emphasis added)
 Maj. Gen. Nazar Hussain Shah, GOC 16 Division. He is reported as conceding that:

 "there were rumours that Bengalis were disposed of without trial." (emphasis added)

 Brigadier Abdul Qadir Khan. He is also quoted as saying that:

 "a number of instance of picking up Bengalis did take place." (emphasis added)

 Lt. Col. S.S.H. Bokhari, CO of 29 Cavalry: He is quoted as saying that:

 "in Rangpur two officers and 30 men were disposed of without trial. It may have happened in other stations as well." (emphasis added)
 Lt. Col. S.M. Naeem CO of 39 Baluch. He is quoted as saying that

 "innocent people were killed by us during sweep operations and it created estrangement amongst the public." (emphasis added)
 Lt Col. Mansoorul Haq, GSO-I, Division: He is quoted as making the following allegation:

 "A Bengali, who was alleged to be a Mukti Bahini or Awami Leaguer, was being sent to Bangladesh—a code name for death without trial, without detailed investigations and without any written order by any authorised authority.

 Indiscriminate killing and looting could only serve the cause of the enemies of Pakistan. In the harshness, we lost the support of the silent majority of the people of East Pakistan. The Comilla Cantonment massacre (on 27th/28th of March, 1971) under the orders of CO 53 Field Regiment, Lt. Gen. Yakub Malik, in which 17 Bengali Officers and 915 men were just slain by a flick of one Officer's fingers should suffice as an example. There was a general feeling of hatred against Bengalis amongst the soldiers and officers, including Generals. There were verbal instructions to eliminate Hindus. In Salda Nadi area about 500 persons were killed. When the army moved to clear the rural areas and small towns, it moved in a ruthless manner, destroying, burning and killing. The rebels while retreating carried out reprisals against non-Bengalis."

 Mr. Mohammad Ashraf, Additional Deputy Commissioner, Dacca. He is quoted as saying:

 "after the military action the Bengalis were made aliens in their own homeland. The life, property, and honour of even the most highly placed among them were not safe. People were picked up from their homes on suspicion and dispatched to Bangladesh, a term used to describe summary executions. The victims included Army and Police Officers, businessmen, civilian officers, etc. There was no Rule of Law in East Pakistan. A man had no remedy if he was on the wanted list of the Army... Army Officers who were doing intelligence were raw hands, ignorant of the local language and callous of Bengali sensibilities." (emphasis added)
 Brigadier Iqbalur Rehman Shariff. He alleged in his statement that during his visit to formations in East Pakistan General Gul Hassan used to ask the soldiers

 "how many Bengalis have you shot".
 Lt. Col. Aziz Ahmed Khan, Commanding Officer 8 Baluch, CO 86 Mujahid Battalion. He is quoted as saying:

 "Brigadier Arbbab also told me to destroy all houses in Joydepur. To a great extent I executed this order. General Niazi visited my unit at Thakargaon and Bogra. He asked us how many Hindus we had killed. In May, there was an order in writing to kill Hindus. This order was from Brigadier Abdullah Malik of 23 Brigade."

 Responsibility and Trials

 As to the issue of responsibility for these atrocities, the report stated:

 "The direct responsibility of the alleged excesses and atrocities must, of course, rest on those officers and men who physically perpetuated them or knowingly and deliberately allowed them to be so perpetuated. These officers and men not only showed lack of discipline in disobeying the directives of the Eastern Command and Zonal Martial Law Administrator, but also indulged in criminal acts punishable under the Army Act as well as the ordinary law of the land.
 In its conclusion it stated at para 38:

 From what we have said in the preceding paragraphs it is clear that there is substance in the allegations that during and after the military action excesses were indeed committed on the people of East Pakistan ...'

 After stating that there were exaggerations and provocations in the Bangladesh allegations, it then goes onto state:

 Nevertheless, inspite of all these factors we are of the view that the officers charged with the task of restoring law and order were under an obligation to act with restraint and to employ only the minimum force necessary for the purpose. No amount of provocation by the militants of the Awami League or other miscreants could justify retaliation by a disciplined army against its own people. The Pakistan Army was called upon to operate in Pakistan territory, and could not, therefore, be permitted to behave as if it was dealing with external aggression or operating on enemy soil. Irrespective, therefore, of the magnitude of the atrocities, we are of the considered opinion that it's necessary for the Government of Pakistan to take effective action to punish this who were responsible for the commission of these alleged excesses and atrocities. (emphasis added)
 As to 'inquiries and trials', the report states:

 "On the basis of the evidence coming before the Commission, we have been able to indicate only in general terms the direct and indirect responsibility of certain senior commanders and others, but the question of fixing individual responsibility and awarding punishment appropriate thereto need to be determined according to the prescribed procedures available under the Pakistan Army Act and other applicable laws of the land. We would, accordingly, reiterate the recommendation made by us in Paragraph 7 of Chapter III of Para V of the main report that the Government of Pakistan should set up a high-powered Court or Commission of Inquiry to investigate these allegations, and to hold trials of those who indulged in these atrocities, brought a bad name to the Pakistan Army and alienated the sympathies of the local population by their acts of wanton cruelty and immorality against our own people. The composition of the Court of Inquiry, if not its proceedings, should be publicly announced so as to satisfy national conscience and international opinion.

 The Commission feels that sufficient evidence is now available in Pakistan for a fruitful inquiry to be undertaken in this regard. As the Government of Bangladesh has been recognised by Pakistan, it may be feasible to request the Dacca authorities to forward to this Court of Inquiry whatever evidence may be available with them".

 David Bergmanhttp://firstname.lastname@example.com:blogger.com,1999:blog-6772259882748892857.post-6179582791556101492015-11-28T16:41:00.000+06:002015-11-28T16:41:15.495+06:00And 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.

 David Bergmanhttp://email@example.com:blogger.com,1999:blog-6772259882748892857.post-13148295002797997112015-11-27T12:14:00.000+06:002015-11-27T21:43:11.641+06:00Bangladesh 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.

 Since its inception in 2010, the Tribunal has delivered 17 verdicts, of which 15 have resulted in the imposition of the death penalty against members of the Jamaat-e-Islami and Bangladesh National Party. All those who were convicted were accused of committing crimes against humanity, genocide and other international crimes in 1971.

 We have long warned that, given the doubts that have been raised about the fairness of trials conducted before the Tribunal, the Government of Bangladesh should not implement death penalty sentences. Similar concerns were expressed by UN human rights experts who, on several occasions, called on the Government to halt the executions, as the trials did not meet international standards of fair trial and due process as stipulated in the International Covenant on Civil and Political Rights, to which Bangladesh is a party.
 The UN opposes the use of the death penalty in all circumstances, even for the most serious international crimes. We renew our call on the Government of Bangladesh to immediately institute a moratorium on the death penalty and abolish this inhuman practice altogether.
 Here is the Bangladesh government statement:

 People's Republic of Bangladesh
 Ministry of Foreign Affairs
 Dhaka
 Press Release
 Dhaka 26 November 2015

 Bangladesh refutes claims of unfairness against ICT-BD verdicts

 Bangladesh has refuted the claims of UN Office of the High Commissioner for Human Rights that there are doubts encircling the ICT-BD trials. The Office also called for abolishing death penalty.

 In its response to the Press Breifing notes of the Office, Bangladesh expressed that it is highly disturbed by the conclusion made in the Press Briefing Note with regard to the misperception/misconception of OHCHR about the reality entailing the verdicts of the International Crimes Tribunal, Bangladesh, (ICT-BD), currently focusing on the two cases of Messers Salauddin Quader Chowdhury and Ali Ahsan Muhammad Mujahid.
 Bangladesh mentioned that Messers Salauddin Quader Chowdhury and Ali Ahsan Muhammad Mujahid have been convicted of committing crimes against humanity and genocide during Bangladesh War of Liberation in 1971. Both the convicted individuals have been handed down the death sentence by the ICT-BD for charges proven against them beyond reasonable doubts. The verdicts were subsequently upheld by the Appellate Division of Bangladesh Supreme after a full bench hearing. On the judgment of the Supreme Court, the Review Petitions submitted by the convicted persons have also been heard by the Appellate Division of the Supreme Court on 18 November 2015, and subsequently disposed of.

 Bangladesh explained that the ICT-BD trials takes solely into consideration the crimes committed by the individuals accused and convicted for crimes against humanity they had committed in 1971, and has no preoccupation with their present political status. Mr. Chowdhury or Mr. Mujahid's cases have nothing to do with their political identity or affiliation, and the point that they belong to some opposition political parties is only a coincidence as far as the trials are concerned. Moreover, certain accused and convicted individuals in the ICT-BD trials are with ruling party and its electoral allies. In this regard, Bangladesh has given a full account of the trials and proceedings related to the two cases of Messers Salauddin Quader Chowdhury and Ali Ahsan Muhammad Mujahid.

 Bangladesh also reiterated that as a state party to the ICCPR, along with its Optional Protocol, Bangladesh is obliged to maintain international standards in its judicial process. The provisions of the International Crimes (Tribunals) Act, 1973 (ICT Act 1973) and the rules made thereunder are not inconsistent with the rights of the accused enshrined under article 14 of the ICCPR. The Government recognizes its responsibility towards its citizens and is committed to fulfill its obligations to the citizens of Bangladesh.

 Bangladesh's response to the Office of the High Commissioner for Human Rights emphasized that the International Crimes (Tribunals) Act, 1973 (ICT Act 1973) of Bangladesh was enacted by the Bangladesh Parliament which is vested with the legislative powers of the Republic under the Constitution. The ICT Act provides for the detention, prosecution and punishment of persons for genocide, crimes against humanity and other crimes under international law and for matters connected therewith. Thus, the ICT Act provides for the detention, prosecution and punishment of persons liable for such crimes committed during the War of Liberation of Bangladesh from 25 March to 16 December 1971. The violations involved the indiscriminate killing of civilians, including women and children; the attempt to exterminate or drive out of the country a large part of population of approximately 10 million people; the dislocation of, at any one stage or another, of nearly half of the country's population of 75 million people; the arrest, torture and killing without trial of suspects; the raping of women; the destruction of villages and towns; and the looting of property. In addition to criminal offences under domestic law, there is a strong prima facie case that criminal offences were committed in international law, namely war crimes and crimes against humanity and acts of genocide under the Genocide Convention 1948. Article VI of the Convention on the Prevention and Punishment of the Crime of Genocide (1948 Genocide Convention) provides that persons charged with genocide or any of the other acts enumerated in Article III shall be tried by a competent tribunal of the State in the territory of which the act was committed.The Convention also provides that (Article 6.2) in countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court. This clearly is the case, which has been maintained by the Supreme Court in Bangladesh with regard two verdicts under discussion. Article V of the Convention also provides that The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III of the Convention.

 It has been categorically found that the rights of defense and procedure given in the ICT Act and the Rules of Procedure are manifestations of "due process of law" and "fair trial" which make the legislation of 1973 more humane, jurisprudentially sound and legally valid. The International Bar Association (IBA) Committee, in a report has also opined that "The 1973 Legislation together with the 2009 amending text, provides a system which is broadly compatible with current international standard". This opinion should alone suffice, as far as the minimum standard required by international law is concerned. Besides, the ICC Statute never denies the primacy of the national law. Article 10 of the Statute explicitly recognizes that "nothing in this part shall be interpreted as limiting or prejudicing in any way existing or developing rules of interpreted as limiting or prejudicing in any way existing or developing rules of international law for the purpose other than this Statute".

 In conclusion, Bangladesh mentioned that The ICT-BD trials have created an opportunity for ending the culture of impunity, ensuring justice to the victims, and paving the way for truth and reconciliation. This was duly recognised by the European Parliament in its Resolution of 16 January 2014 where it posited, "... the International Crimes Tribunal has played an important role in providing redress and closure for victims of and those affected by the Bangladeshi war of independence." Similarly, the European Parliament earlier also acknowledged the need for reconciliation, justice and accountability for the crimes committed during the 1971 war of independence while stressing the important role of ICT in this matter.

 It is unfortunate that while the international community across the board has embraced the trials as an effort to end the culture of impunity for mass atrocity crimes committed over four decades ago, some selected quarters are still resorting to sweeping, biased and unfounded comments about the trials as fed to them by the agents and sympathisers of those accused and convicted. The Government and the people of Bangladesh are confident that plausible legal arguments can be provided for all the fabricated charges being leveled against the trials, and that the fact that fair trial and due process standards had been upheld through out the trial process, would ultimately prevail.

 In view of the above, to any discerning observer, the position taken by the OHCHR in the said press briefing note raises a question – whether the OHCHR is siding with the perpetrators of war crime, genocide and crimes against humanity. It is also a question if the OHCHR is choosing to undermine the cry for justice of the families of innumerable victims; whether the impunity that the majority of the people of Bangladesh want to see gone, is being upheld by the OHCHR. The present government of Bangladesh came to power with an overwhelming majority who supported their declared manifesto of bringing an end to the impunity so long enjoyed by the perpetrators of war crime, genocide and crimes against humanity and no democratic government could ignore such a demand in Bangladesh.
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 The current journalistic environment in Bangladesh does not at present permit a proper commentary and analysis of this statement.
 David Bergmanhttp://email@example.com:blogger.com,1999:blog-6772259882748892857.post-10952523241849211282015-11-21T18:34:00.002+06:002015-11-22T17:55:42.856+06:0010 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

 David Bergmanhttp://firstname.lastname@example.com:blogger.com,1999:blog-6772259882748892857.post-48115588577935671322015-11-20T15:16:00.001+06:002015-11-20T18:58:35.658+06:00Was the court right to rule that Chowdhury's university certificate was a forgery?

 On Wednesday, November 18, the appellate division declined applications made by Salauddin Quader Chowdhury and Ali Hasan Mohammed Mujahid to review the court's earlier decision to uphold the sentence of death originally imposed by the International Crimes Tribunal.

 There are no more legal avenues available for the two men, and unless they seek presidential clemency - which is highly unlikely - the timing of their execution now depends only upon the government and the jail authorities.

 In recent days, former US Ambassador for Global Justice and human rights watch have both strongly criticized Bangladesh courts in the way that they have dealt with these two cases, in particular in dealing with Salauddin Quader Chowdhury.

 This is the first of a number of articles about the trial and that appeal process that resulted finally in the courts decision yesterday.

 This particular article considers the issue of the court's decision on Wednesday to rule that a certificate of graduation from the University of Punjab, filed by the defense, was a 'forgery'

 1. How does the university certificate fit into the trial?

 Chowdhury's key defense was that he was not in Chittagong during the whole of the 1971 war. He had sought to prove this in two ways.

 First through eye witness testimony of those who took him to the airport at the end of March 1971, people who met him in Karachi in the first few weeks of April 1971 including the person in whose house he stayed, and then witnesses who met him in Lahore during from the end of April to August 1971 again including the person in whose house he stayed.

 Secondly through proof that he studied at Punjab university, that he took an exam at the university in August 1971 and obtained a degree certificate.

 2. What happened to the defense witnesses?

 As has been written previously in this blog, the Tribunal restricted the number of witnesses the defense could summon to five, and then to only four. So whilst the accused was able to summon three witnesses that supported his alibi testimony (the fourth witness was Chowdhury himself), he was not able to summon eight specific witnesses who could have provided further testimony in support. (To access the evidence of the three witnesses that did give evidence, read this article) It should be noted that Chowdhury was accused of 20 separate offenses, and the prosecution had called 41 witnesses.

 3. And what about documentary evidence that he had been admitted at the university?

 In relation to the certificate, during the trial, the defense submitted (along with other affidavits) a letter dated 24 January 2011 from the Department of Political Science of Punjab university, and signed by its chairperson, Dr Umbraid Javeed (download here). It stated:

 "This is to certify that Salauddin Quader Chowdhury s/o AKM Fazlul Quader Chowdhury, class roll no 172 remained a student of (BA Hon) (Political Science) who secured 233/500 for the academic session 1970/71. He appeared in BA (Hons) Final Examination in August 1971."
 Following the submission, the Tribunal passed an order which stated:

 'It is an admitted fact that there is no provision to file additional documents on behalf of the defence during trial. Despite of this fact, for the ends of justice, we are inclined to give permission to the defence to submit additional documents and accordingly the defence is permitted to submit the additional documents as mentioned in the application and those documents be kept with the documents filed earlier by the defence.'
 It is not entirely clear what the Tribunal meant by this - other than simply stating that it had received the documents. In its actual judgement the Tribunal dismissed the documentary evidence:

 'The defence in violation of the provision of section 9(5) of the Act submitted some documents before the Tribunal at the fag end of defence argument and intentionally refrained from proving those documents by recalling defence witnesses.'
 4. And what happened at the appeal?

 Following the appeal arguments, the judgment of the court did not explain its views about the letter from the chairperson of the university. It argued, however, that, "No explanation has been given why the accused could not bring any duplicate certificate from the University. If he could collect the affidavits, a testimonial from a teacher, what prevented him to collect a duplicate certificate from the University is not clear to us.". The full extract is below.

 "It is interesting to note that though the accused could file a duplicate copy of his Higher Secondary Examination Certificate, he did file neither the original nor any duplicate copy of the certificate from the Punjab University. He claimed that he had successfully completed his graduation from the Punjub University and then had his higher education from Lincoln's Inn. He filed a testimonial alleged to have been issued by Dr. Umbreen Javid of the department of political science, University of Punjab on 24th January, 2013. No explanation has been given why the accused could not bring any duplicate certificate from the University. If he could collect the affidavits, a testimonial from a teacher, what prevented him to collect a duplicate certificate from the University is not clear to us. The testimonial shows that he appeared BA honours final examination in August 1971 and that he scored 233/500 for the academic session 1970-71.

 It is to be noted that if there are oral and documentary evidence on the same subject, the documentary evidence will prevail over the oral evidence. Accused Salauddin Qader Chowdhury's basis of alibi plea is that he had studied at Punjab University, where he had completed his Bachelors of Arts (Honours).

 Considering the above facts, we are of the view that 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. The accused has utterly failed to prove the same."
 5. And did anything change at the review stage?

 As part of its review application (to exactly the same court which had ruled in the appeal), the defense lawyers had filed an application requesting that 8 alibi witnesses, who had not been able to testify at the tribunal (see above), should be summoned to the court. This application was denied. In court the chief justice said, "You were able to get all these affidavits from all parts of the worlds and yet you were not able to get a copy of the university certificate." In its written order, given later, the court stated:

 This Division rejected the same by order dated 2nd November, 2015, on the reasoning that if he had at all underwent education in Punjab University, he could have produced authentic documents from the University concerned.
 Following this decision the case was adjourned to 17 November.

 6. And then what happened?

 On 16 November, Chowdhury's family then filed an application to admit as additional evidence a number of documents relating to the certificate.

 A. A duplicate copy of the certificate
 (click here to download plain certificate taken from filed application)

 B. A duplicate copy of the certificate attested by Vice chancellor of the University, the registrar of the university, the chairperson of the department of political science of the university and the Deputy Director (Attestation) of the Higher Education Commission, Lahore.
 (click here to download attested certificate taken from filed application)

 C. An attested letter from the registrar video of the registrar in which she says:

 This is to certify that Mr Salauddin Quader Chowdhury s/o AKM Fazlul Quader Chowdhury was a regular student of the Department of Political Science of the Punjab, Lahore for the academic session 1970/71. His university examination roll number was 170 and his department of Political science enrollment was 172.

 The university is willing to provide any other documents necessary to support this matter other than the verified document attacked by my office. For further information on this matter please feel free to contact us office of the undersigned.

 Click here to download copy of attested letter

 D. A video of the registrar in which he states the following:

 I am Doctor Liaquat Ali. I am presently the registrar of th ePunjab University, Lahore and have issued a certificate which reads that:

 To Whom It May Concern
 This is to certify that Mr Saldduin Quader Chowdhury was a regular student of the Department of Political Science, University of Punjab, Lahore for the academic session 1970-71. His university examination rol number was 170 and his department of Political science enrollment number was 172. The university is willing to provide any other documents necessary to support this matter other than the verified document attacked by my office. For further information on this matter please feel free to contact us office of the undersigned.
 I have also atteted and verified the copy of the degree issued to Mr Saluddin Quader Chowdhury, if anyone required to see the documentation regarding the admission, graduation, examination and issuance of the degree the record is available in my office. Thank you for the questions I ma happy to answer the questions.

 In its application in court the defense lawyer pointed out that the university was willing to provide any assistance to the court to verify the documents, and also said the prosecutor can take any steps necessary also to verify the documents

 7. What did the appellate division say in response to these document?

 The appellate division rejected the application. In its written judgment the court found that the certificate was 'spurious' and 'forged'. The court gave the following reasons why it believed that it was forged:

 A. The duplicate certificate was issued on 22 May 2012, but the defense did not lodge the certificate at the time of trial, at the time of appeal or at the beginning of the review application.

 'We fail to understand why the petitioner did not produce this certificate before the tribunal or in the appellate Court in course of hearing of the appeal, although he had filed good number of documents which he procured in 2013. If he could produce those documents, there was no reason for him not to produce these duplicate certificates.'
 B. The certificate states that the academic session was '1971' and not 1968-71

 'In these certificates the academic session has been mentioned as '1971'. Learned Attorney General pointed out that if the petitioner had at all studied at Punjab University in honors course, his examination allegedly held in August 1971 his academic session ought to have been 1968 - 1971, inasmuch as, the honors course during that period was for three years.'
 C. Chowdhury did not produce any paper showing that he had transferred his credit to Punjab university.

 'Learned Counsel submitted, the petitioner studied at Dhaka University earlier and then he transferred his credit to Punjab University in 1971. In support of this claim, the petitioner did not produce any paper. Therefore, facts reveal that in May, the petitioner admitted to Punjab University in honors and obtained graduation in August in political science from the Punjab University which is totally an absurd story to believe.'
 D. The certificate was not certified by a Bangladesh government representative.

 'Further, the authenticity of the certificate has not been certified by an authorised officer of the High Commission Office of Bangladesh stationed in Pakistan.'

 In court the chief justice also said that Pakistan is a hostile country and has criticized the war crimes tribunal, and so any documents coming from Pakistan can not be trusted.

 8. How should one assess the court's decision?

 The following points can be made about the decision by the court

 A. If the document is forged, who forged it? The court's decision assume that there must be a conspiracy involved in the forgery including the Chancellor of the university, the registrar of the university, the head of the political sciences department, and the Deputy Director (Attestation) of the Higher Education Commission, Lahore. However, the court has no evidence to support any such conspiracy.

 B. The court emphasized in its claim that the certificate was forged that the certificate had been made available in 2012, but was not produced before the court until 2015. This is a perfectly legitimate query. However, if the document was forged, it makes no sense why the forgers would put the date of May 2012.

 C. The defense lawyers did in fact provide in its written application an explanation as to why this certificate was not filed earlier. They say that they had filed a letter form the head of the political science department with the Tribunal, and the Tribunal did not at any point, including in its judgment, suggest that a copy of the certificate was required.

 D. The issue of whether or not the defense lawyers should have submitted the document earlier is a different one from whether the document is genuine or not - but the court conflates those two issues. The defense may have been negligent in failing to file this certificate earlier, but the certificate can still be genuine. However the court suggests that the document must be false because it was not submitted earlier.

 E. As to why (i) the certificate has '1971' written on it and not '1968-71' and (ii) as to how it was possible for Chowdhury to attend the university in April and take the exam in August are questions for the university authority to answer, and not one you would expect the court to decide upon itself without hearing what the university authorities had to say on the matter. The Attorney General and the Appellate Division are not experts on such issues and one would imagine, particularly with the life of a man hanging in the balance, the court need to obtain an explanation from the university authorities before coming to these conclusions.

 F. As to the lack of attestation by the Bangladesh High Commission in Bangladesh, there are two issues. First, it is clear that no Bangladesh High Commission would have attested such a document. Secondly, the International Crimes Tribunal Act 1973 makes clear that technical rules of evidence should be ignored - and the prosecution have taken great advantage of this in the past. So why not the defense?
 9. So what does it all mean?

 The key issue here, is that the appellate division put a great degree of emphasis on the absence of the university certificate in its appellate division judgment and also in its initial hearing of the review application, as to why the Chowdhury's alibi cannot believed. As a result, the defense lawyers then filed with the court a duplicate copy of the certificate.

 Of course the appellate division is perfectly within its rights to view this certificate with suspicion, but one would expect - particularly given that a persons life is on the line, and that the trial court and the appellate division court itself has declined to hear a series of alibi witnesses - that before the court made any conclusive judgments about the certificate's authenticity it should make a proper examination of the certificate by calling, if necessary witnesses, from the university.

 It is also notable that the court has previously made claims that documents have been manufactured, without any actual evidence and when it has been strongly denied by those involved.

 David Bergmanhttp://email@example.com:blogger.com,1999:blog-6772259882748892857.post-15433205983004626132015-11-19T17:35:00.001+06:002015-11-19T17:35:12.663+06:00Ambassador Rapp: Why Chowdhury should not be executed

Former US Ambassador at Large for Global Justice

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 David Bergmanhttp://firstname.lastname@example.com:blogger.com,1999:blog-6772259882748892857.post-22602236730978855022015-11-15T12:45:00.001+06:002015-11-15T14:49:06.600+06:00What Amnesty International got right ... and wrong

 On 27 October, Amnesty Internernational published a press release concerning the trials and appeal process of war crimes accused and now convicted Salahuddin Quader Chowdhury and Ali Ahsan Mohammad Mujahid whose executions, barring an unexpected change of mind from the appellate division that is due to hear their review applications on 17 November, are now imminent.

 The press release received a lot of attention in Bangladesh - but unfortunately for Amnesty, not the kind of attention it sought.

 The spokesperson for the Ganarjagaran Mancha, Imran Sarkar said that the statement:

 "proves that Amnesty is not a human rights organisation anymore; they are against humanity, it is an organisation backing militants"
 He also said:

 "Human rights do not prick Amnesty International's conscience when the US bombs and kills people, including women and children, in Iraq, Afghanistan and Syria ... Now they have sided with the US's ally Pakistan and demanding release of Razakars and those who are against the Liberation War. They have issued statement for this,"
 In a letter to Amnesty, the Sector Commanders Forum stated that:

 "Amnesty International has never recognised the right of the victims for justice, but always highlighted the rights of the accused in the dock"
 At a press conference, the ICT prosecutor Tureen Afroze (see link above) said that :

 "Amnesty International only considered war criminals as human beings and were oblivious about the victims."
 She is also quoted as saying that:

 "anyone demanding that freedom fighters be put on trial was speaking the language of war criminals."
 The Prime Minister also commented on the statement suggesting that the organization had been corrupted:

 "Surely, they [AI] have got a hefty amount of something for which they're preparing such reports, or else, why they would do this."
 She also referred to the part of Amnesty's statement which stated that"Serious crimes were also committed by the pro-independence forces, but no one has been investigated or brought to justice for them". To this the prime minister said:

 'This is not acceptable to us that they will [speak] against our freedom fighters'

 There have also been much very critical commentary about the Amnesty article in the media.

 The standard response to all criticism of the tribunal.

 These kind of criticisms are the pretty standard responses in Bangladesh from many (though not all) war-crimes tribunal campaigners* towards any person or organization writing or publishing something critical about the war crimes trials: generally they are labelled as pro-war criminal, pro-jamaat, and accused of taking money from war criminals.

 It is also often suggested (though I am not sure that it has been suggested here) that there is some kind of international conspiracy afoot involving that person or organization.

 None of these allegations are based on any evidence.

 Rarely, of course, do those who make the accusations try and engage directly with the substance behind the criticisms.

 It does not seem to matter to many of these accusers how eminent or obviously independent are the organizations (or individuals) making the criticisms. Amnesty International has now fallen into the same category as other now demonized organizations - The Economist magazine, The New York Times, and Human Rights Watch - which have all been subjected to similar accusations.

 There does not seem to be any appreciation that one can support justice for those who were injured, raped and killed during the 1971 war, as well as, and at the same time, seeking trials that are fair - which is exactly the work of human rights organizations like Amnesty and Human Rights Watch, not just in Bangladesh but in many parts of the world.

 And of course there is the issue of accuracy.

 The comments made by Imran Sarkar suggesting that Amnesty does not care about human rights in the rest of the world (see his quotes above) are just as demonstrably inaccurate as many of the criticism made by the prosecutors against Human Rights Watch.

 So, for example, when prosecutors brought a contempt of court action against Human Rights Watch, they accused the organization of not writing any statements critical of Saudi Arabia, when just in the previous year, a look at the Amnesty website showed that they had published 18 press releases about human rights in Saudi Arabia. (And this was just one of the many inaccurate or misleading comments made about the organization by the prosecutors.)

 And similarly, Imran Sarkar now seems to be accusing Amnesty of siding with the United States in committing human rights violations and of making no comments critical of the the country in relation to their military activities in 'Iraq, Afghanistan and Syria'. However a glance at the Amnesty website would show the inaccuracy of such a statement is. (see here and here, for example about Afghanistan just in the last couple of months: and Syria this month).

 There is of course a basic hypocrisy in the position of those now attacking Amnesty International. When the Awami League was (and presumably one day will be) in opposition, and when those who are now critical of Amnesty are the subject of human rights violations by the government, they will of course turn to these same human rights organizations, and will congratulate them on issuing press releases critical of the government that is then in power.

 People have every right to criticize organizations like Amnesty or individuals whom they disagree with concerning the trials. But it should be done so without making baseless allegations which often impute motives and question integrity.

 Background: Amnesty International's Previous Criticisms of the Tribunal

 Prior to the recently published press release, Amnesty International had issued 5 press releases and 2 urgent actions relating to the International Crimes Tribunal.

 It did not issue its first press release on the subject until February 2013, three years after the establishment of the tribunal, and that related to concerns about the attacks against pro-Shahbag journalists and bloggers.

 The remaining 6, all related to the sentencing of death of accused or their impending executions - and the focus of all of them was the imposition of the death penalty itself.

 In all of them - different to what the Sector Commanders Forum suggests - Amnesty makes clear their support for the process of accountability and justice for the victims.

 However 5 of the 6 releases did also contain some critical commentary about the tribunal. (The only one that did not was published immediately after the conviction and sentencing of Salauddin Quader Chowdhury).

 The critical comments set out in the five are set out below. In summary, Amnesty has criticized certain actions as: 'incompatible with Bangladesh's international human rights obligations', 'in violation of international law', 'defying human rights laws', 'violated international fair trial standards', 'irregularities in the proceedings', 'allegations of unfair trials' and 'intense politicization'.

17 Sept 2013: Death sentence without right of judicial appeal defies human rights law In relation to the death sentence imposed by the appellate division on Quader Molla: "We are very concerned about the Supreme Court's ruling and the apparent relentless effort by the government to ensure that Mollah could be put to death." .... The death sentence was handed down by the highest court in the country, giving Mollah no chance to appeal. The imposition of the death sentence without the possibility of appeal is incompatible with Bangladesh's obligations under international human rights law. "Imposing a death sentence without the right of judicial appeal defies human rights law."

10 Dec 2013: 'Urgent action: Imminent execution - opposition party member': 'On 17 September 2013, the Appellate Division of the Supreme Court overturned Abdul Quader Mollah's life sentence issued by the ICT and sentenced him to death, in violation of international law. ...The imposition of the death sentence without the possibility of appeal is incompatible with Bangladesh's obligations under international human rights law. Multiple appeals against death sentences, as well as a final review of the highest court ruling on them, are available to prisoners sentenced to death by other courts in Bangladesh. This is the first known case of a prisoner sentenced to death directly by the highest court in Bangladesh, and the first known death sentence in Bangladesh with no right of appeal.

8 April 2014: Urgent Action: President must stop imminent execution: "Bangladeshi civil society, Amnesty International and other international bodies have welcomed the government's move to end the longstanding impunity in Bangladesh for serious human rights violations in 1971. However, most observers including Amnesty International have expressed concern over how the proceedings before the ICT violated international fair trial standards. There were also irregularities in the proceedings, for instance, the court did not allow the defence to challenge the credibility of prosecution witnesses.

24 October 2014: Death penalty will not bring justice for crimes during independence war: In relation to the death penalty imposed against Motiur Rahman Nizami: 'The ICT has faced allegations of unfair trials from rights groups since it was established – complaints echoed by Nizami's defence team during the trial.'

3 Nov 2014: Fresh death sentences shows urgent need to end executions: Following the sentencing by the ICT of two men to death, it stated inter alia, that '"The outcome of ICT proceedings have become intensely politicized.'

 What Amnesty got right and wrong
 Amnesty did get things wrong in the recent press release - however were they not to have made these 'mistakes', their press release would in all likelihood have resulted in a statement that was more critical of the Tribunal - and perhaps an even greater level of attacks by those now criticizing Amnesty.

 Here is what they got wrong.

 1. 'Serious flaws': In the past Amnesty has spoken critically about the tribunal (see above), but in this press statement they say that 'serious flaws' occurred 'in their trial and appeal processes.' This language is arguably more serious than language used in the past and therefore the press release should have backed up its position with some clear examples of the 'serious flaws' it consider existed. Whilst, the press release does set out one criticism for each of the cases, they are not enough to substantiate their accusation of 'serious flaws' (see below).

 Assuming Amnesty does have enough substantive concerns about the trials to argue that there are 'serious flaws' - for example they may have wanted to bring up the issue of witnesses in the case of Chowdhury - then it does needs to set these out clearly so people understand that their conclusion has a clear and substantive basis

 Of course, had it done so, this would not have made the press release any better appreciated in Bangladesh, and could well have made the organization subject to even greater criticism! But the press release would then have greater objective legitimacy.

 2. 'Serious flaws in chowdhury's appeal': In relation to Chowdhury, the statement set out one concern ago this particular trial. Is says:

 Salauddin Quader Chowdhury's defence team highlighted serious flaws in his appeal hearing. In one instance, the Supreme Court failed to dismiss the statement of a witness known as "PW-6". The witness testified that a person who could corroborate his statement was dead when in fact the individual was very much alive and had even submitted a signed affidavit to the court to prove it.
 There are some concerns about this paragraph.

 First, this paragraph does not make sense unless more context is provided. What this paragraph is referring to is one particular offense against Chowdhury, where there was a single eye witness (PW6) alleging that Chowdhury committed this crime. According to the evidence of this particular witness in court after the crimes took place, he took shelter at the house of a person, whom he said he thought was now dead. This person in fact turned out to be alive, and this person subsequently gave an affidavit to the defense stating that the testimony given by the witness was untrue, and that he was in fact in India and never came to his house. This is significant as it raises questions about the credibility of the witness.

 The significance of this statement, from Amnesty's perspective, should have been set out.

 Secondly, whilst in relation to the particular offense in question, Amnesty's concern may be substantive, the press statement does not make clear that this criticism does not concern any of the four offenses for which Chowdhury received the death sentence - but for an offense where he received a sentence of imprisonment. So, even assuming that Amnesty's criticism was legitimate, it does not engage with any of the four cases for which he did receive the death sentence.

 By failing to mention this, Amnesty's statement was rather misleading. And it allows one to ask the question: What about the other 8 offenses for which he was convicted, including the 4 for which he received the death penalty?

 3. In relation to Mujahid's case, Amnesty states:

 Ali Ahsan Mohammad Mojaheed's appeal to the Supreme Court failed to dismiss the prosecution's claim that he had instigated his subordinates to commit human rights abuses, when no subordinates had either been identified or testified on record.

 If Amnesty considers this to be a flaw in the trial, it needs to explain why that is the case. Has it been shown necessary in other trials involving similar offenses against a leader of an alleged death squad for 'subordinates to be identified or testified on record'? And is there case law that supports their position? If this is Amnesty's position, then they need to set their position out much more clearly.

 4. 'Immunity to pro-Independence forces': The press release states that 'Serious crimes were also committed by the pro-independence forces, but no one has been investigated or brought to justice for them.'

 Amnesty has never mentioned this point before in all its previous press releases, so it is certainly odd that they lobbed this line into this press releases without any context (mentioning for example, the issue of immunity provided) or any example of the alleged 'serious crimes that they they claim independent forces have been investigated.

 There have been reports of massacres of Biharis at the beginning and end of the war (see this AFP story, for example), and of course since the second world war trials (that took place 70 years ago) all modern international tribunals do engage with crimes committed both sides of the conflict. If Amnesty wanted to make this point about liberation fighters not being prosecuted, since it had never raised this matter in all of its previous press releases, it should have provided material to substantiate its position - and it should have done this in a separate report or press release.

5. Other death sentences: In recent months there have a number of high profile death sentences imposed by the ordinary courts against individuals in Bangladesh, but Amnesty has not commented about these. Whilst, the International Crimes Tribunal is extremely high profile with international dimensions, and does involve international crimes and certainly justifies attention by Amnesty, it looks odd that Amnesty, as a international human rights organization, does not comment on other death sentences imposed in Bangladesh.

 -------------

 * I would certainly of course put myself into a category of those supporting trials against those alleged to have committed war crimes - but in Bangladesh the category of 'war-crimes tribunal campaigners' has now come to mean those who support execution for all alleged war criminals, and who appear unconcerned about issues relating to the fairness of the trials.

 David Bergmanhttp://firstname.lastname@example.com:blogger.com,1999:blog-6772259882748892857.post-13338529461453130902015-10-12T09:52:00.001+06:002015-10-12T10:24:29.733+06:00British lawyer denies 'manufacturing affidavits' for war crimes trial

 To read more about the Salauddin Quader Chowdhury death penalty decision, read here

 ----------------------

 British lawyer denies Chief Justice ruling that he 'manufactured affidavits' for Salauddin<o:p> </o:p>

 David Bergman<o:p> </o:p>

 Toby Cadman, a British lawyer who represented a number of the men accused of crimes committed during the country's independence war of Bangladesh, has denied that he 'manufactured' six affidavits 'to save his client Salauddin Quader Chowdhury', as stated in a judgment handed down by the appellate division.<o:p> </o:p>

 The statement was made by Chief Justice Surendra Kumar Sinha in the judgment published at the end of September which upheld the death sentence imposed on the senior BNP leader for the commission of four offences of crimes against humanity allegedly committed on 13 and 17 April 1971.

 The Chief Justice said that it was 'beyond doubt' that Cadman had manufactured these affidavits.<o:p> </o:p>The six affidavits were given by individuals living outside Bangladesh, including a former prime minister of Pakistan, a former United States ambassador, and the chairman of one of the country's leading media group, who claim that Salauddin was not in Bangladesh at the time these crimes were committed.<o:p> </o:p>

 The affidavits include one from Muhammad Osman Siddique, which says that he was on the same flight as the accused when he flew to Karachi on 29 March 1971.<o:p> </o:p>In another statement, Karachi-based Muneeb Arjmand Khan stated that he 'received' Chowdhury from the airport on that day and took him to 'Mr Yusuf Haroon's residence, known as Seafield.'

 He also says that he was also amongst those who took Chowdhury to Karachi airport when he moved to Lahore 'after about 3 weeks' to go to Punjab university.<o:p> </o:p>Amber Haroon Siddiqui, the chairperson of Dawn newspapers, also provided an affidavit which states that on arrival in Karachi, Chowdhury lived at her family house, (known as 'Seafield') for 'about three weeks. … We used to have discussions at the dinner table where [Salauddin] would join me, my sisters and my parents,' it stated.<o:p> </o:p>

 Salahuddin's defence lawyers submitted the six affidavits to the International Crimes Tribunal a few weeks after the court had restricted to a maximum of five the number of defence witnesses who could be called to testify in defence of 23 offences commited on ten different dates.

 No similar restriction had been imposed on the prosecution, who called a total of 41 witnesses.

 In its judgment, the International Crimes Tribunal ignored the contents of the affidavits stating that the defence had 'intentionally refrained from proving those documents by recalling defence witnesses.'

 In the appellate division judgment, Justice Sinha – as part of his consideration of the affidavits - referred to the arguments of the Attorney General, Mahbubey Alam and various articles published in the online media concerning Toby Cadman's defence work.<o:p> </o:p>He then concluded that, 'These opinions sufficiently prove beyond doubt that Mr. Toby Cadman has been propagating against the trials by the International Crimes Tribunals as a Overseas lawyer for the offenders of War Crimes and crimes against humanity and he has manufactured all these affidavits to save his client Salauddin Qader Chowdhury.'

 Toby Cadman, however, forcefully rejected the allegation.<o:p> </o:p>'I reject the allegations in their entirety. They are unwarranted and unsupported by any credible facts. I was only involved in the taking of one deposition and assisted the defence team generally on defence strategy,' he wrote in a statement to Bangladesh Politico.<o:p> </o:p>

 '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,' he said.<o:p> </o:p>

 Bangladesh Politico has also spoken to four of the six people who gave affidavits from outside the country, and they all deny that Toby Cadman had any involvement in the preparation of these affidavits.

 David Bergmanhttp://firstname.lastname@example.com:blogger.com,1999:blog-6772259882748892857.post-57373340890638174332015-10-11T12:28:00.002+06:002015-10-11T21:14:03.993+06:00Salauddin Quader Chowdhury: Explaining the 'missing' 26 witnesses

 This is part-2 of an article titled, 'Salauddin Quader: The missing 26 witnesses'. The first part is here and should be read first before this one.

 Explaining the 'missing' 26 witnesses

 This is the second part of an article on the 26 key defence witnesses who never had an opportunity to testify either before the International Crimes Tribunal, or the appellate division, in relation to the trial of Salauddin Quader Chowdhury.

 The BNP leader now faces the death penalty for four offences committed on the 13th and the 17th April 1971.

 The first part of the article summarized the evidence that these witnesses would have provided (according to affidavits that they provided the defence lawyers).

 This part looks at how the International Crimes Tribunal only permitted Salauddin Quader Chowdhury's lawyers to summon 5, and then finally only 4 witnesses, to defend their client in relation to 23 offences.

 It was this restriction – which was ordered after the prosecution were allowed 41 witnesses - that meant that the defense could not present their case in court.

 The article also considers subsequent submission to the court by the defence lawyer of affidavits given by these 26 witnesses who had been prevented from testifying in court

 These affidavits, however, were never going to carry much, if any, weight. It is only witnesses testifying in court and then being subjected to cross examination, whose evidence really count.

 Therefore the article focuses on the court's order restricting the witnesses, and how the appellate division dealt with this issue.

 The article also considers the mistakes (or failures) of Salauddin's defense lawyers; they did not make the Tribunal's witness restriction order a specific ground of appeal (though it was raised at the time of the hearings) and also did not exploit all the opportunities that they had to request both the trial and the appellate division to summon these witnesses.

 Restricting the witnesses
 The story starts on 20 May 2012, at the very start of the trial, with the prosecution in the middle of examining its first witness.

 On that day, defence lawyers provided to the tribunal a list of 1153 names whom they hoped would later to testify as witnesses.

 The trial then continued with the presentation of the 41 prosecution witnesses.

 Thirteen months later, on 13 June 2013, the day the last prosecution witness was called, the Tribunal considered a prosecution application arguing for the cancellation of the whole defence witness list on the grounds that it did not provide the 'details' of the charges on which these witnesses would give evidence, as required by the rules of procedure.

 In its order, given on the same day, the Tribunal made no reference to the lack of 'details', which the prosecution lawyers had referred to, but did state that 'the number of defence witnesses ..appears to be an attempt to delay the trial of the case which is not permitted by law.'

 The Tribunal then went onto say that it had powers to regulate the number of defence witnesses and that 'considering the plea of defence case, the defence is permitted to examine 5 witnesses which will be sufficient to prove the defence plea.' The tribunal also referred to the rules of procedure of the International Criminal Tribunal for former Yugoslavia to justify its restriction of witnesses.

 A justified restriction?
 The Tribunal was clearly right to say that the number of witnesses proposed by the defence team was ridiculously long. It was therefore perfectly reasonable for the Tribunal to decide to reduce this number.

 However, in its order, the Tribunal provided no clear rationale as to why it thought that 5 witnesses 'will be sufficient to prove the defence plea' - when the accused was being prosecuted for 23 separate offences which allegedly took place on different dates.

 International or domestic courts that restrict witness numbers generally do so on the basis of one or more of the following reasons: lack of relevance of the witnesses, their repetitiveness (repeating again and again what other witnesses have stated), or to ensure that the time given to the prosecution and the defence cases is proportionate.

 So for example, though the ICTY, as stated by the Tribunal, has the power to restrict defence witness numbers, in practice it uses that power to ensure that the time given to the defence to present its witnesses is 'reasonably proportional to the time given allocated to the prosecution.' So for example, in the recent Karadic case, having allowed the prosecution to have 300 hours, it allowed the defence to have the same amount of time (though the defence had initially sought 600 hours.)

 The Tribunal does not seem to have applied any one of these three principles in reducing the number of witnesses.

 If 'proportionality' had been an issue in the court's mind, it would have reduced the number of witnesses from 1153 to around 40 – the number which the prosecution had summoned – rather than to five.

 And lack of 'relevance' or 'repetitiveness' of the purported defence witnesses could also not be the reason for the court's restriction since the Tribunal had no knowledge about the kind of evidence that any of the proposed defence witnesses on the list were likely to provide. It had not asked the defence lawyers for any details of what their testimony would relate to.

 So what might have been the factors that the Tribunal took into account? In stating that five witnesses were sufficient to prove 'the defence plea', as the court did, the tribunal may well have been referring to the 'plea of alibi' that it assumed the defence lawyers would make when they had their opportunity.

 However, if that was so, how could five witnesses be sufficient for the defence to argue that Salauddin was not present at the places where all the offences took place?

 In Chowdhury's case there were at least ten separate dates on which the 23 alleged offences took place, so without knowing the kind of alibi evidence that the defence was going to provide - it is difficult to see how the Tribunal could decide that 5 witnesses were going to be sufficient to be an alibi for all these dates and offences.

 Moreover, even if, for the sake of arguments, five witnesses was considered sufficient for the presentation of the alibi defence, what if the defence also wanted to call witnesses that would provide evidence which sought to discredit the prosecution case and its witnesses?

 In orders given in other cases (for example in the case of Abdul Quader Molla), Tribunal-2 had argued that since it was the prosecution's obligation to prove its case beyond reasonable doubt, an accused person had no need to call witnesses to prove his or her innocence.

 However, whilst it is true that accused persons do not need to prove their innocence, they do have a right, if they wish, to call witnesses that disproves the prosecution's case by, for example, questioning the credibility of prosecution witnesses – which is in fact what 20 of the witnesses would have done in relation to the four charges for which Salauddin was subsequently sentenced to death. It is clearly relevant for any criminal court to hear that kind of evidence.

 The review
 Following the Tribunal's decision to restrict the witnesses, the BNP leader's lawyers sought a review of the order before the same Tribunal (since there is no right to appeal an order to any other court.)

 In a detailed application, the defence argued that five witnesses was not sufficient to support their alibi defence and moreover that the tribunal had not asked them what would be the minimal number of witnesses they required to prove it.

 The application also argued that the defence wanted to call witnesses so that it could disprove the credibility of the prosecution witnesses and that unless the accused was allowed to call more witnesses the lawyer could not put forward a proper defence. It argued that restricting the number of witnesses to five in comparison to the prosecution case was a 'gross inconsistency' and that five witnesses was an 'arbitrarily' chosen number with no rationale.

 In its order given on 26 June, the Tribunal rejected the review application by stating that 'We find no new ground to reconsider the matter and as such the prayer for increasing the number of D.W.s is rejected.'

 The tribunal did not respond to any of the new points made by the defence in its application.

 When Tureen Afroze, one of the prosecutors against Salauddin was asked to comment on the the Tribunal's decision to restrict the number of defence witnesses to five, she said that she did not know why the Tribunal had taken this decision but that 'they must have reasons for it. …. It is the tribunal that decided on the number, and how they come to the number is not known to me.'

 The sworn statements
 The restriction of witness numbers has been common in many of these trials before the International Crimes Tribunal. In the case of Abdul Alim whilst the prosecution was allowed 35 witnesses, the defence was restricted to 3 witnesses to disprove 17 offenses; 4 witnesses were permitted in Motiur Rahman Nizami's defence relating to 16 charges; 5 witnesses were permitted in the trial of Kamaruzzaman involving 7 offences; and 6 witnesses in the case of Abdul Quader Molla in defence of 6 offences.

 However, unlike in all these other cases, after the Tribunal's initial order restricting witnesses, the defence team collected sworn statements from witnesses they had wanted to summon, and submitted them to court.

 On 21 July, after the third defence witness had given evidence, Chowdhuryís lawyers made an application seeking to adduce as evidence a total of 59 documents including 46 affidavits. These included the 26 that are relevant to this article

 The Tribunal passed an order stating that, 'It is an admitted fact that there is no provision to file additional documents on behalf of the defence during trial. Despite of this fact, for the ends of justice, we are inclined to give permission to the defence to submit additional documents and accordingly the defence is permitted to submit the additional documents as mentioned in the application and those documents be kept with the documents filed earlier by the defence.'

 Under the International Crimes Tribunal Act 1973, 'statements' of witnesses can only be considered 'evidence' in limited circumstances which did not exist here, so, although the wording of the order is ambiguous, one can assume that the court was not treating them 'as evidence'.

 However, had the Tribunal read these statements the judges could well have realized that there were highly relevant to the question of guilt or innocence of the tribunal.

 At this point in the trial, the defence case will still open (in that it was presenting its witnesses), and so the tribunal could have re-evaluated its earlier two decisions to restrict the defence to only allow 5 witnesses and allowed all or some of the people who had given affidavits to be called as witnesses.

 Section 11(1)(a) specifically states that the tribunal has the power 'to summon witnesses to the trial and to require their attendance and testimony and to put questions to them.'

 However, this did not happen.

 The defence though were also at fault. The defense should have specifically re-applied for a revision of the witness restriction order. The court may well have rejected such an application but at least the rejection would have been recorded, and no stone would have been left unturned.

 In any case, three days later the court forcibly closed the defence case without the accused being able to bring to court even its fifth witness.

 Closing the Defence
 On 21 July, when the defence submitted the affidavits, the defence had already called three witnesses.

 DW1 had given evidence for 9 days from between 17 June and 4 July. DW2 testified on 8 and 9 July and DW3 on 16 and 21 July. DW4 was supposed to give evidence on 23 July, but did not do so until 24 July.

 As the defence lawyers did not have their fifth witness ready that day, the court, which had already warned the lawyers that it would not allow any more adjournments, closed the defence case.

 However, the prosecution had taken a very similar amount of time as the defense to hear its first four witnesses, and during the period when the prosecution presented its cases there had been a similar number of days in which the court did not take testimony.

 The prosecution's first four witnesses were heard during the course of 28 working days (between 14 May and 20 June 2012), during which there were 13 days in which no evidence was taken. And in the defence case, the first four witnesses were also heard in 28 working days (between 17 June and 24 July 2013) with 12 days in which no evidence was taken.

 It is therefore not clear why the Tribunal considered it so necessary to close the defence case – as a similar amount of time was required by the prosecution to bring its witnesses.

 It is also notable that whilst 13 months was required for the prosecution to present its 41 witnesses, the defence were only allowed a total of 28 days, less than a month to present its case. And during those 13 months, there were many gaps in which witnesses did not testify. For example in July 2012, there were only seven days when a prosecution witness testified. And in the whole of October 2012, there were only two dates where a witness gave evidence.

 The Judgment and after
 On 1 October, the Tribunal gave its judgment. In its section on the alibi evidence,
 the judgment stated that, 'The defence in violation of the provision of section 9(5) of the Act submitted some documents before the Tribunal at the fag end of defence argument and intentionally refrained from proving those documents by recalling defence witnesses.' The court did not refer to its order given on 24 June in which it accepted the documents.

 The appellate division's judgment published on 31 September, deals at some length with the issue of the admissibility of these statements and held that no reliance should be given to them.

 It gave many reasons for its decision and it is unclear which of these reasons it considered decisive. In relation to the 6 foreign affidavits, the judgment stated that: 'beyond doubt' Toby Cadman, a British based defence lawyer for the accused has 'manufactured all these affidavits to save his client Salauddin Qader Chowdhury' (something which he vehemently denies); that the affidavits coming from abroad were not properly authenticated and one of them was not affirmed before a notary public; that they 'do not inspire any confidence'; and that 'there is no evidence to show that the person before whom the notarial acts were done, were Notary Publics and that the States in which the notarial acts were done authorized him by law to do the notarial acts.'

 In relation to the statements obtained in Bangladesh, the judgment stated 'the defence did not explain why it did not affirm those affidavits before the Registrar of the tribunal or that why it did not seek tribunal's permission; that the affidavits were 'prepared in the same sitting, by the same persons and created with a view to confusing the prosecution case'; and that taking into account the contents and the form of the statements, 'there cannot be any doubt that these are all collusive affidavits.'

 Putting to one side whether the judgment was right on these particular points, the appellate division did not consider in its judgement that the only reason why these statements had to be given at all, was because the Tribunal had only allowed the defence to call five witnesses.

 The appellate division judgment did not consider the legitimacy of that decision, and whether the defence should have been given every opportunity to call these witnesses.

 The appellate division also did not consider, as far as one can tell from the judgment, whether these witnesses should be summoned before it. The appeal court has the power to look at the evidence in its totality, and of course the constitution requires it to do 'complete justice' which specifically includes passing 'orders for the purpose of securing the attendance of any person.

 In nothing this, however, it should be stated that the defence lawyers did not make any application seeking the attendance of these witnesses - something it clearly should have done.

 What now?
 All legal avenues are just about closed – though there does remains the option of the defence lawyers seeking a review of the appellate division order. However, this is undertaken by the same judges who gave the appellate division judgment, can only be based on very limited grounds (that there is an 'error apparent on the face of the record'), and are rarely successful.

 However, the situation that we have now is that Salauddin Quader Chowdhury is due to be put to death for extremely serious crimes though he has not been permitted to present anywhere near a full defence case i.

 Whilst the prosecution called 41 witnesses – and never had any restriction imposed upon them – the defence were only allowed to call 5 witnesses, which was subsequently restricted to 4.

 After the court imposed this restriction, the defence then submitted to the Tribunal the affidavits of 26 witnesses, whom the defence had wanted to testify in court - and whose testimony if true would have exonerated him from the 4 charges for which he was subsequently sentenced to death.

 Both the tribunal and the appellate division considered that these statements were invalid. However, neither court apparently thought that these witnesses, which raise serious questions about the integrity of the prosecution case, should be given an opportunity to attend court and provide their testimony.

 Process is important. It is a basic principle of due process, that a person should not be convicted for a serious offense - yet alone executed - without being able to present their defense case as fully as possible. Therefore, if the execution of Salauddin Quader Chowdhury is not seen by many as an irreversible miscarriage of justice, a way must be found for these 26 witnesses to be given an opportunity to testify in court, be subject to cross examination and their evidence assessed to determine whether they raise any doubt as to the guilt of the accused.

 These witnesses may well be lying. However, the only way to assess whether they are telling the truth or not is for them to testify in a court of law.

 David Bergmanhttp://firstname.lastname@example.com:blogger.com,1999:blog-6772259882748892857.post-3818948179173459582015-10-10T13:58:00.001+06:002015-10-11T20:22:42.362+06:00Salauddin Quader Chowdhury: The "missing" 26 witnesses
 On 30 September 2015, the appellate division made public a copy of its judgment which upheld the death penalty against Salauddin Quader Chowdhury, a former Bangladesh Nationalist Party leader, for the commission of four offenses committed during the country's 1971 war of independence.

 At present there is a hiatus. There are no legal proceedings pending, providing an opportunity to comment on the current situation.

 The defense lawyers have a right to lodge an application seeking a review of the appellate division judgement within 15 days of the judgement which was published on 30 September. At the time of writing, they have not done so.

 Commentary on any legal proceeding in Bangladesh - and in particular those involving the International Crimes Tribunal - is difficult, as Bangladesh courts take a very expansive view of what is contempt of court through 'scandalization' (unlike for example Indian courts). It has become very difficult for writers in Bangladesh to assess when commentary will be viewed as 'fair criticism', exempt from contempt of court charges, and when it will be viewed as 'scandalization'. As a result, few in Bangladesh dare to write, fearing the consequences.

 In relation to the International Crimes Tribunal, about which there is understandably much emotion, this has become even more precarious. Even if one escapes an application for contempt, there is a category of tribunal supporters who refuse to accept that writing about fair trial standards is at all justified. For them, the process should not be subject to any critical commentary, and they will try to label any writer who raises points they do not like as 'pro-jamaat', 'pro-war criminal' and the like - failing to engage at all with the substance of what is being stated. Social ostracism, from otherwise progressive people whose views on most other things one shares, is therefore another risk that people face.

 Nonetheless, there are moments when the risk is worth taking - and this is no more so than when someone is on the cusp of being put to death.

 This is part-1 of an article - about which great care has been taken to ensure that it stays the right side of the line of 'fair criticism' - setting out concerns that 26 key defense witnesses were never given an opportunity to testify on behalf of Salauddin Quader Chowdhury. To read part 2, click here

 The missing 26 witnesses

 When the Bangladesh government decided to hold to account those alleged to have committed international crimes during the country's independence war in 1971, they did not just pick the suspects up and shoot them.<o:p> </o:p>

 Far from it. Following the demands of campaigners who for many years had been demanding justice for Bangladeshis who had collaborated with the Pakistan military, in 2010 the newly elected Awami League government established a special tribunal.<o:p> </o:p>

 Allegations were investigated by a dedicated group of police, and prosecutors laid charges against those where they thought there was sufficient evidence. Following a trial, a three-judge tribunal decided on their guilt, following which there was a right for the accused to appeal.<o:p> </o:p>

 Therefore, for those seeking justice, 'process' – that is to say, the manner in which the guilt of the accused was to be decided  - was a crucial element of their demand.<o:p> </o:p>Campaigners did not just want these men – many of whom they hated, despised and considered guilty of heinous crimes – to be just 'picked up and shot'.

 They wanted them to be proved guilty in a court of law before receiving as they later put it, 'the highest penalty available'. And they wanted this process to be 'fair'<o:p> </o:p>

 A week ago, the appellate division published its full judgment upholding the death penalty against the Bangladesh Nationalist Party leader, Salauddin Quader Chowdhury for four offences involving crimes against humanity during the 1971 war.<o:p> </o:p>

 Assuming he is put to death – and there does remains the option of the defence submitting a review application in the coming week – he will be the third person to suffer the death penalty following conviction at the International Crimes Tribunal.<o:p> </o:p>

 However, how fair was the process that has resulted in this conclusion?<o:p> </o:p>

 A fair process requires many things, but one crucial element is allowing an accused person a proper opportunity to present his or her case.<o:p> </o:p>

 But, in relation to the four offences for which Salauddin has been sentenced to death, there were 26 crucial defence witnesses that were never given an opportunity to testify in court.

 It is the matter of these witnesses, from whom no court has heard, which is the subject of these articles.

 The six foreign witnesses

 Who are these witnesses, and why are they so important?<o:p> </o:p>

 Six of the witnesses live outside Bangladesh and include a former US ambassador, a former prime minister, a former member of the Pakistan legislative assembly and the current chairperson of the Dawn media group in Pakistan.

 Their evidence supports Salauddin's alibi defence, which is that on 29 March 1971 he flew out of Dhaka to Karachi where he stayed for three weeks. After that, he travelled on to Lahore where he studied, until August of that year, for a degree at Punjab University.

 We know what they would have stated in court as the defence obtained sworn statements from them.<o:p> </o:p>

 These witnesses include Muhammad Osman Siddique, the former United States ambassador, who stated that he was on the same flight as Salauddin, who was an old school friend of his, when he flew to Karachi on 29 March.<o:p> </o:p>

 Karachi-based Muneeb Arjmand Khan, also a friend of the accused since school days, stated that on 29 March he 'received' Salauddin from Karachi airport and took him to 'Mr Yusuf Haroon's residence, known as Seafield.' He also said that he was amongst those who took the BNP leader to Karachi airport when after 3 weeks he moved to Lahore so that he could go to Punjab university.<o:p> </o:p>

 Amber Haroon Siddiqui, now the chairperson of Dawn media, confirmed that when Salauddin arrived in Karachi, he lived at her family house, (known as 'Seafield') for about three weeks. She said, 'We used to have discussions at the dinner table where [Salauddin Quader Chowdhury] would join me, my sisters and my parents.'<o:p> </o:p>

 And then there is Ishaq Khan Khakwani, a former member of the National Assembly of Pakistan, who said that '[Salauddin] arrived at Karachi a few days after … 26th March 1971 …. Salauddin was picked up from the airport by our mutual friend Muneeb Khan and I spoke to both of them once they reached Mr Yusuf Haroon's [father or Amber] residence called Seafield House.' He then says that when the BNP leader moved to Lahore, and he was admitted in the Punjab university the accused stayed within 'in our family house … where he stayed with me throughout till we left for London in October 1971.' He mentions the names of five people who would congregate with the accused 'almost daily' in that period, and stated that 'Shamin Hasnain, who is now a justice of the High Court in Bangladeshi' would sometimes join them.

 Along with two other witnesses their evidence is that Salauddin was not present in Bangladesh during the war – and specifically he was not present there on 13 and 17 April when he is said to have committed the four offences for which he has been sentenced to death.<o:p> </o:p>

 The 20 Bangladesh witnesses

 The other 20 witnesses live in Bangladesh and their evidence – as seen by the affidavits which they drafted - dispute key elements of the prosecution case that claim that Salauddin committed the four offences.<o:p> </o:p>

 The first offence on 13 April 1971 involved the murder of Nutun Chowdhury at the Kundeshwari compound in Gohira village. In this case, the Tribunal primarily relied on two 'eye-witnesses' - that of Gouranga Singha, who was part of the victim's extended family and Gopal Chandra, the principal of Kundeshwari Girlís college.<o:p> </o:p>

 In its judgment the Tribunal quoted Gopal as stating that he saw the accused shoot Nutun Chandra Singha using 'his pistol or revolver as he had instruction from his father to kill Nutun Chandra and thereafter, accused Salauddin Quader Chowdhury left the crime site after ensuring death of Nutun Chandra who died onthespot.'<o:p> </o:p>

 However seven people gave affidavits which state that Gopal had fled Kundeswari before the offence took place, and six that Gourango was also not present.<o:p> </o:p>

 A 78 year old resident of Kundeshwari, for example, said that '8 or 10 days before the death of Notun Chandra Singha, myself and my cousin Gorongho Singha and other members of my family all went to India via the Ramgar border. The college principal, Gopal Chandra Das and his family were also with us. When Nutun Chandra died, Goronga Singho and Gopal Chandra Das were not present at Kundeshwari Bhavan. They were with us in India.'<o:p> </o:p>

 In addition, three people said that it was the Pakistani soldiers alone that killed Nutun and that the only Bengalis present had their 'hands tied up'. A 66 year old resident of the village Gohira stated that, 'At one stage, one soldier shot at Nutun Babu. He fell to the ground at once. After the shooting, within a couple of minutes, the soldiers left the place and took a lot of things with them. With the soldiers, two Bengali men were there with their hands tied up.'<o:p> </o:p>

 In the second offence that took place that day, the Tribunal relied on the evidence of Anil Boran Dhor to convict Salauddin of participating in the murder of four men in Bonik Para in Sultanpur.<o:p> </o:p>Anil had told the Tribunal that he and his father were picked up from their home by the accused, taken outside and shot along with some other members of the village. He said that he somehow survived, but that his father and two of his uncles died.<o:p> </o:p>

 However two people from the village of Sultanpur, said that before the murder Anil had taken refuge in India with them. And another witness, says that soon after the killing he went to the crime scene and heard that only Pakistani soldiers were involved.<o:p> </o:p>

 In the third offence, Salauddin was convicted of participating in the killing of 50 people from the village of Unsatturpara. Prosecution witnesses alleged that on the same day as the other two offences, Salauddin had led Pakistan soldiers to the village where they were shot in the BNP leader's presence.

 Chapala Rani - called a 'star witness' in the Tribunal's judgment had told the court that she was amongst those assembled by the village pond, and that her father and two brother in laws were killed.<o:p> </o:p>

 However four people, all residents of Unsatturpara stated that Chapala Rani had taken refuge in India before the incident took place. They also state that Janti Bala Paul, and Sujit Mohafon, whose statements were also relied by the Tribunal, were not present.

 One 66 year old person, for example, stated that on hearing that the Pakistani had set up a camp close to where they lived many people decided to go to India. 'And with ... Janti Bala Paul, ... Chapala Rani, along with their children,' the affidavit states, 'we went on 3 or 4th of April to India by the Ramgar border. Sujit, the younger son of Jogesh Chandra Mohazan, was also with us.'<o:p> </o:p>

 In relation to the fourth death sentence offence that took place on the 17 April, involving the abduction and murder of the founder of the Awami League in Chittagong, Sheikh Mozaffor Ahmed and his son Sheikh Alamgir, four people questioned the prosecution evidence given in court.<o:p> </o:p>

 One, a 71 year old man who was at that time the 'linesman' of the bus-stand, from where Salauddin is supposed to have picked the two men up, said that he had never heard about the incident.<o:p> </o:p>Another 65 year old men who ran a tea stall also gave a statement that he had never heard of this incident at the time, 'The news is totally false .... Because at that time I never saw or heard of any incident like that.'<o:p> </o:p>And two further witnesses, said that the family members of Sheikh Mozaffor Ahmed ó who had testified to the tribunal that Salauddin was present - had never previously claimed that the BNP leader was involved.<o:p> </o:p>

 Highly relevant ... but are they true

 So these two categories of witnesses – the six who support the Salauddin's alibi defence and the twenty that challenge key elements of the prosecution case – are on the face of it highly relevant to the decision on whether the accused is innocent or guilty.<o:p> </o:p>

 However, as with any witness, it is possible that these ones are not telling the truth.<o:p> </o:p>

 But this can only be determined when they testify in court, and have their evidence tested through cross examination.<o:p> </o:p>

 So why were these witnesses never summoned to court to give evidence?<o:p> </o:p>

 The short answer is that in relation to 23 separate offences alleged against Salauddin, the Tribunal only allowed the  defence lawyers to call 5 witnesses, subsequently restricted to 4.

 This decision was made after Tribunal had imposed no such limit on the number of witnesses the prosecution could summon. There were in total 41 prosecution witnesses.<o:p> </o:p>

 How this happened - the role of the Bangladesh courts as well as that of the defence lawyers - is discussed in the next part of this article.

 David Bergmanhttp://firstname.lastname@example.com:blogger.com,1999:blog-6772259882748892857.post-84037826224327467292015-07-30T13:35:00.000+06:002015-11-21T22:00:41.874+06:00Where was Salauddin Quader Chowdhury in 1971?

 On Wednesday, the appellate division upheld the sentence of death on Salauddin Quader Chowdhury (SQC), a leader of the opposition Bangladesh Nationalist Party, in relation to four offenses, and the convictions and sentences of imprisonment in four other cases.

 The only amendment made to the Tribunal judgement by the appellate division was an acquittal in one case.

 The four offenses for which he was sentenced to death took place on two specific days - the 13th and the 19th April 1971.

 The defense argued that SQC was not present in Chittagong on these two particular dates (or indeed throughout the 9 month war). Since the death penalty involves offenses committed on the 13th and 19th April, these are key dates to focus on.

 Three defense witnesses in court gave evidence which supported SQC's case that he flew out of Dhaka for Karachi on 29 March 1971, remaining in the city for at least three weeks. If true, it is difficult to see how SQC could have been back in Chittagong after only two weeks.

 SQC's defense team wanted to call other witnesses to give evidence in support of the claim that he was in West Pakistan during the war, and in particular during April.

 The Tribunal however only allowed the defense to call a total of 5 witnesses to testify for the defense - having allowed the prosecution to call a total of 41 witnesses.

 SQC's lawyers obtained affidavit statements from other witnesses - six of which supported his defense concerning his presence in West Pakistan during the war.

 Though these statements were lodged with the Tribunal, in its judgment the Tribunal did not refer to any of these statements, only stating that they were not submitted correctly.

 The appellate division has not yet published its judgment, so it is not possible to know how the court dealt with this decision on the part of the International Crimes Tribunal to ignore the substance of these highly relevant affidavit statements.

 Below is the article published in New Age on 28 October 2013, following his conviction by the Tribunal earlier that month (and before he lodged his appeal before the appellate division) which considers the decision of the Tribunal not to consider these affidavits in its judgment and raises questions about the appropriateness of Chowdhury's conviction for the offenses on 13th and 19th April - yet alone receiving a death sentence for them.

 The article below contains links to both the defense evidence in court and the affidavits lodged with, but whose substance was not considered by the ICT.

 [Please note that a more detailed and upto date article on this subject can be found here]

 --------------------

 Tribunal not consider submitted affidavits supporting SQC's alibi

 David Bergman

 The tribunal that passed the death sentence on opposition leader Salauddin Quader Chowdhury for offences committed during the independence war of Bangladesh did not consider in its judgment the contents of six affidavits which supported his claim that he was not in Chittagong at the time the offences were committed.

 The affidavits supported the accused's alibi defence that on 29 March 1971 he flew out of Dhaka to Karachi where he stayed for three weeks, then travelling on to Lahore where he studied, until August of that year, for a degree at Punjab University.

 Chowdhury's lawyers had submitted the evidence in the form of written statements as the tribunal had earlier restricted to five the number of witnesses which the defence could bring. In the end, due to time restrictions imposed by the tribunal, Chowdhury could only bring four witnesses.

 The affidavits were from people whose names were contained on a long list of 1153 people which the defence had initially provided to the tribunal as possible witnesses.

 The prosecution had no limits placed on the number of people it could bring to testify in court – with 41 people giving evidence.

 In its final judgment, the tribunal stated 'some documents' had been submitted at 'the fag end of [the] defence argument' but said that this was done so 'in violation of the provision' of the law, and that the lawyers had 'intentionally refrained from proving those documents by recalling defence witnesses.'

 It then went onto state that the 'defence has miserably failed to prove its plea by documentary evidence that the accused stayed in West Pakistan during [the] whole period of the Liberation War of Bangladesh.'

 The judgment however did not mention that the court had earlier allowed the defence lawyer 'to submit' the affidavits as evidence to the tribunal.

 'It is an admitted fact that there is no provision to file additional documents on behalf of the defence during trial,' the court's 21 July 2013 order stated, referring to these six affidavits and 49 other documents submitted by the defense.

 'Despite of this fact, for the end of justice we are inclined to give permission to the defence to submit additional documents' and should 'be kept with the documents filed earlier by the defence.' The tribunal did not suggest in its order that it considered these documents had no probative value.

 No appeal has yet been lodged by the defence or prosecution lawyers. 30 October is the filing deadline.

 On 1 October 2013, Chowdhury was convicted for 9 offences concerned with crimes committed during the 1971 war of Independence.

 Six of these nine offences – including all four of the offences which Chowdhury was sentenced to death – took place on just two days, the 13th and 17th April 1971 – within one month of the beginning of the independence war.

 The thee other offences took place on 14 April, 5 July, and in the third week of July 1971.

 Apart from the Salauddin Quader Chowdhury himself, the defence lawyers presented three witnesses at the trial who supported the accused's alibi defence.

 Qayum Reza Chowdhury, told the court that he dropped the accused, his cousin, at Tejgaon airport on 29 March 1971 to take a flight to Karachi, and that, just over a week later on 8 April, went himself to the city, along with two friends Salman Rahman and Nizamuddin.

 Nizamuddin, a friend, confirmed that he had travelled with Qayum and Salman Rahman on 8 or 9 April 1971 to Karachi, and that after a few days, he had met the accused at Salman Rahman's house.

 Abdul Momen Chowdhury, who at that time was a diplomat based in Pakistan, said that in the second or third week of April 1971 he went to Karachi and met the accused for the first time at the office of an old school friend Asiqur Rahman.

 In its judgment, the tribunal dismissed this evidence citing 14 eye-witnesses who had confirmed that the accused was present at the scene of the alleged offences.

 The judgment also referred to evidence that showed Chowdhury was present in Chittagong in September 1971 - including a newspaper article and a special branch report which mentioned that the accused was injured in an attack on his car during that month, and the testimony of doctor who said that he had treated him on that occasion.

 However, in coming to this conclusion, the tribunal did not consider the documentary evidence which the tribunal had previously accepted from the defence.

 This included an affidavit from Muhammad Osman Siddique, a former United States ambassador, who had known Chowdhury since college days, which stated that he was on the same flight as the accused when he flew to Karachi.

 In another statement, Karachi-based Muneeb Arjmand Khan, a friend of the accused since school days, stated that he 'received' Chowdhury from the airport and took him to 'Mr Yusuf Haroon's residence, known as Seafield.'

 He also says that he was also amongst those who took Chowdhury to Karachi airport when he moved to Lahore 'after about 3 weeks' to go to Punjab university.

 Amber Haroon Siddiqui also provided an affidavit which stated that on arrival in Karachi, Chowdhury lived at her family house, (known as 'Seafield') for 'about three weeks.'

 'We used to have discussions at the dinner table where [Salauddin Quader Chowdhury] would join me, my sisters and my parents,' it stated.

 A further detailed statement was given by Ishaq Khan Khakwani, a former member of the National Assembly of Pakistan.

 '[Salauddin Quader Chowhdury] arrived at Karachi a few days after … 26th March 1971,' the affidavit stated.

 'Salauddin was picked up from the airport by our mutual friend Muneeb Khan and I spoke to both of them once they reached Mr Yusuf Haroon's [father or Amber] residence called Seafield House.'

 It goes onto state that when Chowdhury came to Lahore, 'with great difficulty we got him admitted in the Punjab university' and that the accused stayed within him 'in our family house … where he stayed with me throughout till we left for London in October 1971.'

 He mentioned the names of five people who would congregate with the accused 'almost daily' in that period, and stated that 'Shamin Hasnain, who is now a justice of the High Court in Bangladesh' would sometimes join them.

 Ishaq also mentioned a trip taken on May 20 1971 when he and Chowhdury drove from Lahore to Malton to attend 'the engagement ceremony of Dr Nasir Khakwani,' a classmate of the accused from schooldays.

 The statement also states how after their exams in August 1971, he and Chowdhury went along with five other named people – including that of Salman F Rahman – to the hill stations in Muree.

 Amongst the documents given to the tribunal along with the affidavits was a letter written by the sitting High Court judge Shamim Hosnain to the country's current chief justice which stated '[the accused] was a classmate of mine at Punjab University at Lahore. It is true that Salauddin Quader Chowdhury was at the Punjab University Campus between the first week of May 1971 till August of the same year.'

 A letter signed by Dr Umbreen Javaid, the Chairperson of the Department of Political Science at the University of Punjab, dated 24 January 1971, certified that Salauddin Quader Chowdhury was a student of political science 'who secured 233/500 for the academic session of 1970-71' having appeared in the 'final examination in August 1971.

 Two other affidavits - that of Mohamedmian Soomro, and Riaz Ahmed Noon - also supported different elements of the alibi defense.

 Zead-Al Malum, the prosecutor in Chowdhury's case told New Age that, it was not relevant that the tribunal had earlier allowed the defence to submit the documents; what was at issue was whether the documents had 'probative value' or not.

 'Documents only claim probative value if they have been exhibited by the witnesses of the respected parties,' and these documents were not, he stated.

 He added that, 'At time of pronouncement of judgment the tribunal legally passed its opinion that the documents additionally submitted by the defence was in violation of the law,' in that they had not been included in a list of documents submitted at the beginning of the trial.

 David Bergmanhttp://email@example.com:blogger.com,1999:blog-6772259882748892857.post-15434616279365940542015-06-14T10:50:00.000+06:002015-06-17T09:53:51.286+06:00Geofrey Robertson QC and ICT contempt proceedings

 Geofrey Robertson QC is one of Britain's most able and renown barristers, who has written widely on war crimes and who has sat as an international appellate judge at the UN sponsored Special Court for Sierra Leone.

 One could not seek a more eminent, independent - or indeed appropriate - person to assess the International Crimes Tribunal, and earlier this year he was asked by one of the lawyers acting for the Jamaat to 'provide an independent opinion on their fairness and on the Tribunal's proceedings and conduct,' and this was published in 2015

 To read about the issue relating to the independence of the report

 To read about what the report says about prosecution pakistani military officers

 I raise this now, since the Robertson report (which has got almost no media attention in Bangladesh) contains a short section looking at the contempt proceedings against myself in relation to writings on this blog - and since now the Tribunal has given its judgement on the subsequent contempt proceedings against 23 people who signed a statement critical of that particular judgment, it is now possible to share what Robertson said about those contempt proceedings.

 However, I will share an edited version for fear that my re-publication of the full version could be the cause of further contempt charges - since it uses choice language about the tribunal that will not be considered appropriate under the current ICT contempt jurisprudence.

 So those who want to see, exactly what Robertson has to say about the contempt proceedings, go to p.65/66 of the report. Here is the edited version.

 "…. and by 2014 the judges have become even more XXXX and XXX of nationalist assumptions. This is demonstrated by their contempt proceedings against David Bergman, an experienced journalist whose work (notably an award-winning Channel 4 film "War Crimes File") has helped to draw international attention to the need for justice in respect of the 1971 atrocities, and whose blog has provided reliable information about the course of the trials (see fn 126). He was indicted, simply for questioning whether as many as three million civilians were killed in 1971 (see fn127)

 This figure has become a government shibboleth, but is probably exaggerated, like most estimates of war deaths made in the absence of sound demographic evidence. The original source of the 3 million figure appears to have been a report in Pravda, which at the time was providing propaganda support for the Indian government (which has put the death toll at about one million). Most, if not all, independent studies challenge the 3 million estimate, (see fn128) although the likelihood is that there were at least a million casualties, not all of them were victims of the army and its associates. But even to question XXX that three million died was considered to be a crime. "Why did he create this controversy?" "Why did he write about this issue at this time?" were questions put to Bergman's counsel by the judges who, when they convicted him in December 2014, showed themselves XXXX of the fundamental rule of free speech which permits questioning of any historical "fact" if done without intent to stir up racial hatred.

 Merely for questioning the 'official' death toll of three million, the Tribunal judges ruled that Bergman had "hurt the feelings of the nation' and XXXX accused him of having "neither good faith nor an issue of public interest". (See fn 129) This finding, in respect of a journalist of good repute writing on an obvious matter of historic interest, whose calculations are supported by most independent studies, does XXX about the XXX of these judges to make accurate findings of fact when "national honour" is perceived to be at stake. The presiding judge, Obeidal Hassan, went so far as to claim that Bergman "has a perverse mindset about the 1971 war. Let the government carefully scan the matter". This is language which betrays the court's XXXXX XXXX. XXXXXXX judiciary bound, under its common law, to suffer the scrutiny of honest critics. (see fn 130) It is fair to say that Bergman was only fined the equivalent of £41, but the case reveals a XXXXX on the part of a Tribunal that XXXX criticism.

 It does not, of course, matter whether the casualties were 500,000 or three million – that these judges think it matters sufficiently to convict a respected journalist of a crime for challenging, like other experts, the three million figure, shows XXXX. Bergman's indictment on a second charge of contempt, for criticizing the Tribunal's defense of trials in absentia, provides another example of XXXX. The judges had defended the holding in absentia of Abul Kalam Azad's trial on the ground that the Lebanon Tribunal and certain European countries also permitted such trials. Bergman pointed out, quite rightly, that this was misleading, because in those courts the absent defendant, when captured or voluntarily returning, was entitled to have the verdict put aside and to be tried in his presence – a right which was not vouchsafed by the ICTA. (see fn 131) To be indicted for criminal contempt for pointing out factual errors in its decision is XXXX, and provides a further example of the Tribunal's XXXX to justified criticism."

 Footnotes referred to126: See generally, http://bangladeshwarcrimes.blogspot.co.uk/
127: For the post, see http://bangladeshwarcrimes.blogspot.co.uk/2011/11/sayedee-indictment-analysis-1971-death.html
128: The various estimates of scholars of the genocide are most recently set out by Bass in "The Blood Telegram" (above) p350-1, footnote 6. He too describes the 3 million figure as "inflated".
129: See The Guardian, 2 December 2014, "Bangladesh court convicts British journalist for doubting war death toll".
130: Because "Justice is not a cloistered virtue". See Lord Atkin in Ambard v A.G. for Trinidad & Tobago, (19360 A.C. 322 at 335.

 131 For these posts, see http://bangladeshwarcrimes.blogspot.co.uk/2013/01/azad-judgement-analysis-1-inabsentia.html, and http://bangladeshwarcrimes.blogspot.co.uk/2013/01/azad-judgment-analysis-2-tribunal.html

 David Bergmanhttp://email@example.com:blogger.com,1999:blog-6772259882748892857.post-62762363787305663202015-06-11T17:31:00.002+06:002015-06-12T01:12:14.675+06:00Initial thoughts on the valiant 49 signatories

Shireen Huq, Rehnuma Ahmed, Zafrullah Chowdhury,
 Farida Akhter, and Anusheh Anadil outside the ICT

 The Tribunal has now given its judgement on the 23 people who signed a statement critical of a previous judgment of the tribunal which had held that writings on this blog were in contempt of court, but refused to seek an unconditional apology. 22 were cautioned but exonerated. Zafrullah Chowdhury was convicted and sentenced to 1 hour in the custody of the court, with a fine of Tk 5,000

 To read about the previous judgement

 against this blog, click here

 To read about proceedings involving the signatories to the statement, click here

 In due course I will be writing quite a bit about this recent judgment. It raises a lot of interesting issues, (particularly when read along with the original judgement upon which the statement was commenting on), about how contempt law involving an alleged 'scandalization of the court' is interpreted by the Bangladesh courts and particularly the International Crimes Tribunal.

 Whilst more and more jurisdictions either no longer have that kind of contempt law (for example, there is no such thing as contempt by scandalization in English law), the Bangladesh courts have an increasingly hardline and broad interpretation.

 Here, I just want to make the point about how - unlike in Bangladesh - journalists in India are able to criticize court judgements without apparent fear of recourse to contempt applications by the courts, or by over enthusiastic lawyers.

 A fine example of this is in a recent article on the political website the wire.in - concerning the alleged errors contained in a decision by the Karanataka High Court which acquitted the former Tamil Nadu Chief Minister J Jayalalithaa in a corruption case.

 The article refers to 'glaring errors', 'jurists spitting fire' because of the poor quality of the judgement, the 'judiciary giving legal sanction to corruption', the High Court setting 'a bad precedent, one that encourages bribery', and a judgement that 'will bring down the image of the Indian judiciary in the world'

 It is simply unimaginable that such an article could be published in Bangladesh - whether it be about a judgement of the ICT, or one of the High court - without ICT prosecutors or other lawyers (who see themselves as protecters of the dignity of the judiciary) immediately pressing for contempt charges being brought, with thunder and fury It is also difficult to see how a Bangladesh court would not proceed against the writer and publisher of such an article unless they immediately made an unconditional apology. In fact, it is doubtful that even an unconditional apology could exonerate person writing or publishing such an article

 The title of the article itself would in all likelihood be sufficient for a contempt case in Bangladesh: 'More than bad maths: Four big errors that let jayalalithaa off the hook."

 The article then goes onto state:

 [M]ore serious errors of duplication have been found in Judge CR Kumaraswamy's verdict. It now appears that the High Court has, erroneously, added loan amounts twice to the income of the defendants. This means that the amount calculated by the judge as 'explained income' — the basis on which the court has exonerated Jayalalithaa and others — is a highly inflated figure. ...

 In fact, the High Court appears to have made some more glaring errors.

 Jurists are spitting fire at the law used by Judge Kumaraswamy on Page 914 of his order acquitting Jayalalithaa. ...

 "Is the judiciary giving legal sanction to corruption?" asked a retired High Court judge who did not wish to be named …

 Legal eagles say that this ruling by the High Court judge could set a bad precedent, one that encourages bribery ...

 The legal fraternity points out other errors in the judgement. ...

 "This judgment will bring down the image of the Indian judiciary in the world …" he said.

 [T]he legal fraternity is certainly chafing at what has taken place
 The question of course is this: if such comments do not bring the Indian judiciary into disrepute do not dishonor the Indian High court or justice system, do not demean 'the majesty' of the Indian courts, do not 'debase' the authority of the Indian High court, do not 'belittle the authority and institutional dignity' of the Indian justice system, do not 'severely shake the confidence of general people' in the authority of the Indian courts, do not create a 'hostile impression in the mind of public on the authority and competence of the court', and are therefore not subject to contempt proceedings in India - why then are far, far, far less serious criticisms of judgements given by Bangladesh courts deemed to do so, and be in contempt?
 David Bergmanhttp://firstname.lastname@example.com:blogger.com,1999:blog-6772259882748892857.post-13716029891389684612015-04-12T14:20:00.002+06:002015-04-13T11:15:29.509+06:00Telling the truth about the tribunal process

 There are some very necessary conversations to be had about the the International Crimes Tribunal in Bangladesh. There are important things to be said both by those who, on the one hand unconditionally support the tribunal, and those who, on the other hand, support the principle of accountability for 1971 crimes and the need for tribunal, but who are concerned about aspects of the particular process.

 Unfortunately in Bangladesh, few who fall into the second category feel able to speak publicly about their position, and one wonders whether now any independent newspaper would publish what they had to say. There are two main reasons for this: First, a real fear that a word 'wrong' could result in proceedings for contempt of court before the International Crimes Tribunal; and secondly having to suffer the resulting abuse and ignorant criticism on social networks and newspapers suggesting that, however thoughtful and accurate one's analysis, you are a 'supporter of Jammat', 'paid by Jammat', 'a supporter of war criminals', and even a 'collaborator' etc etc

 As a result the only part of the conversation about the Tribunal that is heard in Bangladesh is from those who unconditionally support the tribunal. It is a great pity that it is not possible to have a healthy and informed debate on these issues.

 Whilst there is, from this camp, some very thoughtful and moving writing about the tribunal, there are, also from this camp, those who make completely inaccurate statements about the tribunal which are allowed to remain unchallenged. The Daily Star today carried an op-ed titled, 'The debate over war crimes trials: is there any merit?', claiming that no criticism of the tribunals is merited. It is written by the Convenor of the Canadian Committee for Human Rights and Democracy in Bangladesh, so one would hope at least he would know what he was talking about. However, that is far from the case.

 His argument in support of the tribunal is set out out in two key paragraphs near the end of his article and are set out below.

 In my limited research, I have not come across any war crimes tribunal whose proceedings are so transparent and where the defendants are given VIP treatment. Also in accordance with international standards, trials are open to all. At the same time, the accused are given adequate time and facilities to prepare their cases. Prosecutors must furnish them a list of witnesses along with the copies of recorded statements and documents upon which they intend to rely. Defendants also have an unfettered right to call witnesses and to cross-examine prosecution witnesses. All of this is in keeping with the International Covenant on Civil and Political Rights.

 The US ambassador-at-large for war crimes Stephen Rapp, who visited Bangladesh a number of times over the past years to monitor the trial process, has emphatically lauded all attributes of the trial process in his last visit to Dhaka in August. In his words, "the best way in the world to find the truth is the judicial process where the evidence is presented, where witnesses are cross-examined, where both sides have an opportunity to be heard and that is what is being done here [Bangladesh]. It is the process that the American government strongly supports," he affirmed.
 Perhaps the only correct statement are his first three words, 'in my limited research'. His research was certainly very limited! There are certainly positive things that can be said about the tribunal - but what the article sets out in these two paragraphs is mostly inaccurate.

 Let me go through each of the statements in the two paragraphs in turn.

 1. "I have not come across any war crimes tribunal whose proceedings are so transparent"

 These are the ways in which the tribunal in Bangladesh are not as transparent as most other international crimes tribunals. (a) there is no transcript of proceedings; (b) applications made by prosecutors and lawyers for the accused are not publicly available; (c) Tribunal orders given from August 2010 until September 2013 (for Tribunal 1) and June 2013 (for Tribunal 2) are not publicly available; (d) it is difficult (though not impossible) for any person who is not a journalist, lawyer or a party to the tribunal to gain entry to the proceedings; (e) it is not filmed for internet viewing. For these reasons, it cannot be said that the tribunal is a particularly transparent process.

 2. "….. and where the defendants are given VIP treatment."

 I think one can be assured that the facilities of the jails in the Hague, for example are better than those in Bangladesh - even if in Bangladesh they are called VIP.

 3. "Also in accordance with international standards, trials are open to all."

 Technically the trials are open to all, but in practice they are difficult to access if you are an ordinary member of the public who just wanted to watch the proceedings. You need to get a pass, and to get a pass you need to get permission from the registrar, but the registrar is inside the tribunal building, and it is not easy to get access to the registrar to get the permission.

 4. "At the same time, the accused are given adequate time and facilities to prepare their cases."

 Clearly, this depends on what is considered to be 'adequate time' to prepare their cases. The law states that a trial can start as little as three weeks after the prosecutor provides the 'list of witnesses intended to be produced along with the recorded statement of such witnesses … and copies of documents which the prosecution intends to rely upon in support of such charges.' (section 9(3)) Some of the trials have taken place just over three weeks after the lawyer has received the documents, and in other cases they have been given a few more months.

 5. "Prosecutors must furnish them a list of witnesses along with the copies of recorded statements and documents upon which they intend to rely."

 This is correct - but it is the minimum you would expect the prosecutors to provide. It perhaps should be noted that the law does not though require prosecutors to provide any exculpatory evidence that they have found, which is required in the international tribunals and is a requirement common in developed legal systems

 6. "Defendants also have an unfettered right to call witnesses … "

 The defendants do not have an unfettered right to call witnesses. The Tribunal has limited the number of witnesses whom the accused is allowed to testify on his behalf. The Tribunal's decision about the numbers of witnesses is generally made right after the prosecution has finished calling its evidence and is made without knowing the nature of the evidence that other witnesses, that the defense have sought to call, would have given. As a result:

 - in the trial of Salauddin Quader Chowdhury, the prosecution brought 41 witnesses to the tribunal to prove 23 offences, but the defence was restricted to only calling 5 witnesses.
 - in the case of Abdul Alim, the prosecution was allowed 35 witnesses, but the defence was restricted to 3 witnesses to disprove 17 offences.
 - 4 witnesses have been permitted in Motiur Rahman Nizami's defence relating to 16 charges;
 - 5 witnesses in the trial of Kamaruzzaman involving 7 offenses;
 - and 6 in the case of Abdul Quader Molla in defence of 6 offenses.
 - only in the cases of Delwar Hossain Sayedee (the first case brought to trial) and Golam Azam were the number of defence witnesses allowed to be in double figures – 20 and 12 respectively.

 To read about the issue of the lack of witnesses, click here

 (It should be noted that the defense have in some cases initially sought to call a totally unreasonable numbers of witnesses to the tribunal)

 6. "…. and to cross-examine prosecution witnesses."

 It is not correct to say that there is an 'unfettered right … to cross examine witnesses'. The appellate division has ruled that the accused cannot cross examine a witness on any previous statements that that witness had previously given. This includes statements that the witnesses are supposed to have given to the Tribunal investigation officer - which is the basis for the whole trial proceeding. This is a rule that does not apply in normal Bangladesh law nor do I know of any other jurisdiction where it applies. This is significant as it means that the defense lawyers cannot point to the contractions between what witnesses stated in court and what they had earlier stated to either the investigation officer or in interviews to other people. To read how this was significant in the Molla case, see here

 7. "The US ambassador-at-large for war crimes Stephen Rapp, who visited Bangladesh a number of times over the past years to monitor the trial process, has emphatically lauded all attributes of the trial process in his last visit to Dhaka in August. …."

 This is also not true. This is what he said at the press conference he gave, and where a transcript is available:

 What I have noted before is that there are aspects as to the rights of the defense that are not observed in a way that is consistent with international law. The defense has had situations where they have not been able to summon witnesses on their own, and under the international covenant it is said the defense shall have the same right to summon witnesses as the prosecution. And when it comes to cross-examination, being able to cross-examine witnesses based on prior inconsistent statements has been restricted. When it comes to questions of the substantive law, I was very hopeful that it be clear that crimes against humanity would be defined as they are internationally, as being part of a widespread or systematic attack against a civilian population. Such attacks obviously happened here.
 But it should be clear that the proof must be provided. And I think there were efforts by the prosecution to put on the proof that was there. Later on a decision was made that you do not to need do it—that you do not need to follow these international standards. You can just say that a crime against humanity is any attack against a civilian. Well that is not an international crime. That is an ordinary murder.

 So there are places where I have been disappointed, frankly, by the process. But it is not done yet and I am hopeful. I do not want to be someone that just criticizes and points to errors, because in every system there are challenges. But here in this one where you start with a statute that does not contain the modern international criminal law and when you have a constitutional provision that say none of the rights that apply under your constitution apply to this court, there is a lot of room for development. There are positive developments, positive aspects, and there are some that are less than positive.

 So as we would say in our country, where we have juries: The jury is still out. We are still evaluating how this is going and are hoping that as this process moves forward that it will meet the high goals and aspirations that all of us have for it.
 As I say, there are aspects about it which I am happy, others that I am not happy. Okay?

 In addition, subsequent to this Rapp gave a phone interview to a number of journalists, which can be read here, which also indicates his concerns.

 David Bergmanhttp://email@example.com:blogger.com,1999:blog-6772259882748892857.post-65038887485125945382015-04-11T22:18:00.002+06:002015-04-11T22:43:39.802+06:00Why do people support the tribunal despite criticisms?

 Why is it that so few liberals, progressives and human rights activists in Bangladesh are willing to accept the criticisms articulated by many independent and well respected observers about the International Crimes Tribunal? Why have neither of the country's two main independent human rights organisations, Ain-o-Salish Kendra or Odhikar, given any statement remarking on concerns about the tribunal?. With so many people clapping for joy at the execution of Md Kamaruzzman - and just hours before the publication of what are very likely to be jubilant headlines in tomorrow's newspapers here in Bangladesh - I am pasting part of a short feature I wrote late last year for Al Jazeera looking at this issue.

 (To see statements from human rights organizations and international bodies calling to a halt to the execution, see here)

 ----------------------------------

 Bangladesh war trials: Justice or politics?Many contend the war crime trials hold leaders accountable for crimes during the 1971 war, others argue it is revenge.

 ….. Jamaat-e-Islami, now a key member of the opposition alliance against the Awami League government, has argued that the trials represent a political vendetta against the party.

 However, polls conducted in 2013 showed that the legal process is supported by an overwhelming majority of the country with 86 percent of those polled stating they wanted trials to proceed.

 'Meting out justice'

 Some contend that the trials should be viewed as holding leaders answerable for crimes for which they had previously escaped accountability and not an act of retribution.
 In a recent article, Mahfuz Anam, the editor of the country's leading English language newspaper The Daily Star, stated, "It is not revenge. It is not retribution. It is not settling of accounts. And politics, it is definitely not. It is meting out justice."
 "It is holding political leaders accountable for their action especially if they commit crimes against humanity. It is fulfilling an inner urge for justice and fair play. In the final analysis it is establishing the supremacy of law and humanitarian values that we have learnt to hold dear in our hearts."
 The perspective, however, sits in stark contrast with the views of international human rights organisations which have been uniformly critical of the process, though still supporting the need to hold trials.
 The International Commission of Jurists has stated that the tribunal does "not adhere to international standards of a fair trial and due process" and that there are "serious procedure flaws at all stages".
 And Human Rights Watch has also said that that the conviction of Golam Azam, the head of the Jamaat in 1971, was based on "flawed proceedings".
 The International Centre for Transitional Justice also called for the current judicial proceedings to be "suspended" earlier this year pointing to issues of "fundamental unfairness".

 Lack of criticism

 Although Anam's article refers to unwarranted "incidents" at the tribunal and the possibility of "some procedural flaws", the issues raised by the international human rights lobby continued to be ignored.
 He is not alone in this lack of interest in fair trial criticisms.
 Neither of the country's two main independent human rights organisations, Ain-o-Salish Kendra or Odhikar, have given any statement remarking on any concerns.
 And the autonomous National Human Rights Commission, far from voicing any dissent, has been highly supportive of the trial process.
 So, while some commentators have suggested that the trial process is dividing the country, the most notable chasm stands between supporters of the tribunal, which include the country's human rights community and other members of wider civil society, and international human rights organisations.
 Criticisms of the trials have been largely ignored in Bangladesh, with many believing that the trials are fair, preferring to accept the tribunal's view that the law and process have ensured that the "fundamental and key elements of [a] fair trial" exist.
 Iftekaruzzaman, the Executive Director of Transparency International points out that it is in the nature of these kinds of highly charged trials dealing with international crimes that there is disagreement about issues of due process - and so the opinions of international organisations should be put in that context.
 "There is certainly questions about whether or not the international human rights organisations are being sufficiently objective or not," Iftekaruzzaman told Al Jazeera.
 "For example in relation to the death penalty, people ask why is it that the only time these organisations make statements against the death penalty involves those convicted of crimes against humanity, and not on any other cases."
 There are also those who argue that the international organisations are judging these particular trials from too high a standard.
 "When the criminal justice process in Bangladesh is riddled with corruption, torture and politicisation, and there is a general lack of due process, people wonder why there should there be any reason for concern about these particular trials," Dr Shahnaz Huda, chairman of the law department at Dhaka University told Al Jazeera.
 Syeed Ahmed, a blogger on the war crimes trials, agrees. "People don't think that the alleged war criminals are being treated any worse than common criminals. So, unless the whole legal system is upgraded, people are unwilling to give special treatment for the alleged war criminals."

 Manufactured outcry

 There is also the view that the the fair trial criticisms are really just a cover for those who are really only interested in helping the accused escape punishment.
 The sentiment has merged with scepticism about the integrity of the foreign human rights organisations themselves.
 "Loud voices of human rights agencies regarding fairness of the war crimes trials has failed to create traction here because they have not made the same kind of arguments in relation to other trials in Bangladesh." Ahmed told Al Jazeera.
 For some, the issue of fair trials is simply not significant, since in the view of many, these men are known to be guilty of crimes in 1971, and who have managed till now to use their political influence to escape justice, and the sooner they are punished the better.
 "People in Bangladesh 'know' that these men are guilty, so they do not see any reason to go through this process to try to find out whether the men are guilty of not," Huda told Al Jazeera.
 "Their guilt is so accepted by everyone, that there is no need for due process."
 This view might help explain why the same polls that suggested four-fifths of the country supported the tribunals, also showed a majority of people, 63 percent, thought that the trials were "unfair" or "very unfair".
 Ahmed also thinks that this apparently conflicting positions about the war crimes trials reflect people's recognition that there are no better options.
 "The fact that the Awami League is the only party willing and able to conduct this war crimes trial [means that people are] settling for whatever this government is offering. Four decades of rehabilitation and amnesty of war criminals have made people impatient, rejecting questionable concerns about fair trials," he added.
 While fair trial advocates argue that due process concerns should trump all these arguments, there are not many in Bangladesh who are willing to accept that their assessments should have any influence on the process itself.

 David Bergmanhttp://email@example.com:blogger.com,1999:blog-6772259882748892857.post-59297268760691429002015-04-11T16:04:00.002+06:002015-04-11T23:25:05.485+06:00Statements seeking stay on Kamaruzzaman execution

 With Jamaat leader Kamaruzzman about to face the death penalty probably tonight, human rights organizations and other international bodies outside Bangladesh have called on the government to stay the execution - though no similar organizations inside the country have as far as I known done so.*

 (See also: Why do people support the tribunal despite criticisms?)

 Here are the main statements that have been published:

 United Nations, Special Rapporteurs

 "The UN human rights experts have on several occasions expressed alarm regarding serious violations of fair trial and due process guarantees in the judicial proceedings before the Tribunal that were reported to them"

 United Nations, High Commissioner for Human Rights: Halt execution

 "The trial was reportedly rife with irregularities and did not meet international fair trial standards."

 Human Rights Watch: Suspend death sentence of sentence of war crimes accused

 "At his trial, the court arbitrarily limited the ability of the defense to submit evidence, including witnesses and documents. The court denied the defense the opportunity to challenge the credibility of prosecution witnesses by rejecting witnesses' earlier statements that were inconsistent with their trial testimony."

 European Union: Reiterates its opposition to use of the death penalty

 "The European Union reiterates its opposition to the use of capital punishment in all cases and under all circumstances. The EU has consistently called for its universal abolition. Capital punishment is not a deterrent against crime and makes miscarriages of justice irreversible. The European Union calls on Bangladeshi authorities to commute all death sentences and to introduce a moratorium on executions as a first step towards definitive abolition of capital punishment.

 Amnesty International: President must stop imminent execution

 "Bangladeshi civil society, Amnesty International and other international bodies have welcomed the government's move to end the longstanding impunity in Bangladesh for serious human rights violations in 1971. However, most observers including Amnesty International have expressed concern over how the proceedings before the ICT violated international fair trial standards There were also irregularities in the proceedings, for instance, the court did not allow the defense to challenge the credibility of prosecution witnesses.".

 UK Bar Human Rights Committee: Stay Execution pending independent review

 "BHRC has raised serious concerns repeatedly about the fairness of trials before the International Crimes Tribunal (ICT) in Bangladesh, and in particular in respect of the trial of Muhammad Kamaruzzaman in a statement of 11 November 2014. There is evidence that the trial of Kamaruzzaman was flawed on a number of counts, including arbitrary limitation of witness evidence, limited ability to cross examine key witnesses and concerns relating to the impartiality of judges which resulted in an application to recuse two judges of bias being summarily dismissed. ….

 "While the BHRC is opposed to the death penalty in all circumstances, it urges the Bangladeshi authorities now to take immediate steps to prevent an execution that arises out of a flawed trial. An independent review of this case and all other cases currently before the ICT must be conducted if victims are to gain genuine accountability for the atrocities committed in 1971."

 Commonwealth Lawyers Association: Concerned over sentencing of Md Kamaruzzaman

 "The CLA supports steps taken to seek justice and address impunity. Further, it supports the principle of the International Crimes Tribunal (ICT), and its stated aim of prosecuting those who are alleged to be responsible for atrocities committed during the 1971 War of Independence, however, the ICT in its present form does neither of these two things. The likely execution of Kamaruzzaman will be the second instance of state sponsored murder concerning proceedings before the ICT, the first being the execution of Abdul Quader Molla.

 The ICT has not adhered to its obligations under domestic Bangladesh law, nor has it met its obligations under those international treaties and agreements to which Bangladesh is a state party, in its failure to ensure all those who appear before it are afforded a fair trial."

 At all stages of the process, from court of first instance to appellate courts, the ICT has either failed to acknowledge the serious shortcomings of the procedures adopted, or, if it has recognised such shortcomings, it has failed to address them.

 United States government: Best not to proceed

 "We have seen progress, but still believe that further improvements to the ICT process could ensure these proceedings meet domestic and international obligations. Until these obligations can be consistently met, it is best not to proceed with executions given the irreversibility of a sentence of death."

 * the initial version of this post stated that the lack of a US government statement was notable. However, late in the day, just a few hours before Kamaruzzman was executed, a statement was published and is included above

 See: Some Background to the case

 David Bergmanhttp://email@example.com:blogger.com,1999:blog-6772259882748892857.post-62049894720674269212015-04-06T12:51:00.003+06:002015-04-06T12:51:55.112+06:00For the government, is this a good time for the execution of Kamaruzzaman?

Md Kamaruzzman, sentenced to death for 1971 war crimes

 With the decision today by the Appellate Division to dismiss the review application made by Md Kamaruzzaman (against the decision of the same court which had earlier upheld the sentence of death), the government is now in a position to execute him.

 There does remain the issue of clemency. The appellate division in its decision involving Abdul Quader Molla (involving his review application) accepted that a convicted war criminal does have a right to make a mercy petition, but goes onto state the existing time limits of 7 and 21 days set out in the jail code should not apply. It states that the processes of seeking and disposal of a mercy application, should be done as 'expeditiously as soon as possible'. The judgement states at p.26

 He should be informed of his privileges to file a review or a mercy petition, as the case may be, as soon as the intimation about the confirmation of sentence is received by the jail authority and to fix a short date for execution until the existing rules are amended. The petition of review and mercy should be disposed of expeditiously as soon as possible. If the prisoner does not choose to avail of the privileges, the sentence should be executed on the date so fixed without delay, which have become ineffective under prevailing changed circumstances.
 Neither Kamaruzzaman, nor his defense counsel, have stated whether he will seek clemency - and no doubt the defense will try and stretch this time out of not saying anything one way or the other as long as possible - but I cannot see Kamaruzzman seeking clemency. This is first because seeking clemency would imply an admission of guilt on his part, and secondly, there is no way of knowing that the clemency would be granted. Kamaruzzman, and the Jamaat-e-Islami, would not want to be in a situation of first admitting guilt and then not being given clemency!

 For the government, is this a good timing for an execution? Intriguingly it is likely to happen just before the mayor elections in Dhaka and Chittagong - just as the Molla execution took place in December 2013, just weeks before the January 2014 national elections.

 Arguably, there at least three reasons why government decision makers might think this was a good time to execute Mollah.

 1. The government has categorically defeated the BNP which had sought to force the government to hold new elections. Khaleda Zia has retreated back home with her metaphorical tail between her legs, having gained almost nothing for her party, and lost an enormous amount (imprisonment of thousands of her activists, deaths and injuries of dozens in police shootings, and the remaining activists in hiding etc) - not even mentioning of course the loss of other lives and costs to the country. The Jammat-e-Islami is in a similar position - particularly as their fortunes are tied closely to that of the BNP. The opposition has therefore never been organizationally or morally weaker (though ironically electorally that may not be the case). With the opposition in such a situation, this could be seen by the government as a perfect time to execute Kamarauzzaman - the icing on the cake.

 2. The execution of Kamaruzzaman helps to define the Awami League as a 'pro-liberation party', and helps to differentiate the party clearly from the BNP. At a time of elections this is helpful to the Awami League, as it will assist the party in getting the support of people in centre ground who are perhaps skeptical of the governing party, but in favor of justice for 1971. It will of course gain the enthusiasm of some of the party's base.

 3. The international community has rarely been so weak in its interactions with the government on human rights issues - and an execution now will gain, I would judge, far less attention or concern than the execution of Molla in December 2013.

 David Bergmanhttp://email@example.com:blogger.com,1999:blog-6772259882748892857.post-45396190733170892572015-04-02T12:31:00.001+06:002015-04-02T18:18:08.208+06:00Contempt proceedings against 23 Bangladeshi citizens

 Yesterday, on 1 April - and no, it was no April's fool - the International Crimes Tribunal passed an order initiating contempt proceedings against 23 Bangladeshi citizens perhaps breaking a record in the number of defendants ever accused in a single case of contempt of court, involving the allegation of 'scandalization of the court'.

 This order is a culmination of proceedings which was initiated after 49 citizens signed a statement critical of a judgment of the tribunal which had held that writings on this blog was in contempt of court.

 To read the statement that was issued by the 49 at the time

 To read the judgement (and critical analysis of it) about which the statement concerned.

 The '23' who now have proceedings against them are those who were unwilling to provide an 'unconditional apology' for the statement that they had made.

 As this and previous orders have set out, the court required that any such apology must seek the 'mercy of the court' and show 'true remorse and repentance for their comments'. The court found that the statements of 'regret 'of the 23 - which included pointing to their constitutional rights of freedom of expression - was not an adequate apology.

 It should also be noted that, as part of the same proceedings, the New York Times was asked to provide an explanation to the Tribunal for an editorial that it wrote on the same judgement which the tribunal claimed was 'derogatory and unwarranted.' The paper has not responded to the court and the Tribunal has stated that it will pass an order on this matter on 23 April 2015.

 Here are the main previous orders

 28 Dec 2014: To 'Protect its jurisdiction and authority'

 14 Jan 2015: 'Explain yourselves'

 11 Feb 2015: The New York Times's 'unwarranted and derogatory comment'

 23 Feb 2015: Throw yourself 'at the mercy of this tribunal'

 3, 18 Mar 2015: 'Upgrading the majesty of the court', a 'signal of upmost admiration'
 --------------------

 Here is the text of the order passed on 1 April 2015

 Today Mr. Anisul Hassan, Advocate representing Mr. Rezaur Rahman by filing a supplementary written statement expressed unconditional apology for the conduct he had shown being a party to the impugned statement. We have heard the learned Advocate. We have seen and perused the explanation. It is to be noted that already 25 makers of the statement have been exonerated as they have tendered unconditional apology for their conduct. Accordingly Mr. Rezaur Rahman is also exonerated with observation that in future he will remain cautious in making any comment on the lawful authority and jurisdiction of the Tribunal, a lawfully constituted judicial forum.

 1. We have patiently ploughed through the explanation submitted by the 23 makers to the statement in question. It appears that by appearing in person and also by engaging counsel, by submitting written explanation (1) Masud Khan, (2) Afsan Chowdhury, (3) Ziaur Rahman, (4) Hana Shams Ahmed, (5) Anu Muhammad, (6) Anusheh Anadil, (7) Muktasree Chakma Sathi, (8) Lubna Marium, (9) Farida Akhter, (10) Shireen Huq, (11) Dr. Zafrullah Chowdhury, (12) Mr. Ali Ahmed Ziauddin, (13) Rahnuma Ahmed, (14) Dr. Shahidul Alam, (15) Dr. C.R. Abrar, (16) Dr. Bina D' Costa, (17) Mahmud Rahman, (18) Dr. Zarina Nahar Kabir, (19) Leesa Gazi, (20) Shabnam Nadiya, (21) Nasrin Siraj Annie, (22) Tibra Ali, (23) Dr. Delwar Hussain expressed 'regret' for the comment they made in the said statement.

 2. At the out set, it is to be noted that out of 49 citizens who were asked to explain their conduct regarding the impugned statement they made, 26 citizens have already threw them to the mercy of the Tribunal seeking unconditional apology and accordingly they have already been exonerated. But the explanation furnished by 23 citizens the makers to

 the impugned 'statement' through which they have expressed their mere 'regret' by saying–

 "Statement and conduct was not in any way intended to 'belittle the authority and institutional dignity of the Tribunal in the mind of public' nor was it intended to question the 'openness and transparency of the Tribunal' as stated in the said Order of the Hon'ble Tribunal, and thus regret any such impression inadvertently made."
 3. At the same time they have made an effort to defend by taking protection of fundamental rights enshrined in the Constitution of Bangladesh in respect of freedom of thought and conscience and freedoms of expression and association."

 4. Prima facie it appears that the core content of the 'statement' questions 'transparency and openness' of the judicial proceedings before the Tribunal and also justification of the order sentencing a journalist for the act of scandalising the Tribunal constituting the offence of contempt.

 5. The way the makers to the 'statement' have expressed their concern on the matter arising out of the order convicting David Bergman for the offence of contempt prima facie appears to have tended to belittle the authority and institutional dignity of the Tribunal in the mind of public which goes against 'public interest'.

 6. We are constrained to infer it prima facie that the 23 citizens in the name of expressing concern by making the impugned statement are not found to have expressed true remorse and repentance for their comment, by submitting explanation. Rather, they have made effort to justify their conduct they have shown by initiating the impugned statement.

 7. The Tribunal finds the 'regret' they have expressed it to be without real and sincere remorse. The Tribunal thus finds that it has been merely tendered as a 'weapon of defence'. It is to be noted that 'regret' and 'justification' or 'defence' cannot stand together. We are not convinced to accept it particularly when it is coupled with a 'defence'. Thus it is rejected.

 8. In view of above, we are of the view that for protecting authority and dignity of the Tribunal and to keep the notion of administration of justice untainted in the mind of public it is appropriate to draw contempt proceeding under section 11(4) of the International Crimes (Tribunals) Act 1973 against (1) Masud Khan, (2) Afsan Chowdhury, (3) Ziaur Rahman, (4) Hana Shams Ahmed, (5) Anu Muhammad, (6) Anusheh Anadil, (7) Muktasree Chakma Sathi, (8) Lubna Marium, (9) Farida Akhter, (10) Shireen Huq, (11) Dr. Zafrullah Chowdhury, (12) Mr. Ali Ahmed Ziauddin, (13) Rahnuma Ahmed, (14) Dr. Shahidul Alam, (15) Dr. C.R. Abrar, (16) Dr. Bina D' Costa, (17) Mahmud Rahman, (18) Dr. Zarina Nahar Kabir, (19) Leesa Gazi, (20) Shabnam Nadiya, (21) Nasrin Siraj Annie, (22) Tibra Ali, (23) Dr. Delwar Hussain the makers to the impugned 'statement' published in the daily Prothom Alo on 20 December 2014.

 9. As we find prima facie case in initiating contempt proceedings against those 23 citizens, we decide to ask each of those 23 citizens, to show cause, as to why they will not be punished individually for contempt of the Tribunal for scandalizing the Tribunal in the mind of the public by making impugned statement and thereby demean its authority and dignity under the provision of section 11(4) of the International Crime (Tribunals) Act, 1973 on or before 23.04.2015.

 10. The eight (8) persons who have been staying in abroad may be duly notified through the respective Bangladesh Mission. Ministry of Foreign Affairs, Dhaka, Bangladesh is asked to do the needful.

 11. Records shows, notice of the order has duly been served upon the respective authority of "New York Times" but they have not responded yet. In such a posture, we are constrained to pass appropriate order regarding the comment made by the "New York Times" for scandalizing the Tribunal in the mind of the public by publishing impugned comment inter alia 'It should immediately overturn Mr. Bergman's Sentence and Conviction' in it's editorial dated 23.12.2014 and thereby demean its (Tribunal's) authority and dignity. 23.04.2015 is fixed for further order. Registrar, ICT is directed to communicate the order accordingly.

 David Bergmanhttp://firstname.lastname@example.com:blogger.com,1999:blog-6772259882748892857.post-49317245109275765802015-04-01T15:39:00.003+06:002015-04-02T11:46:45.524+06:00'Upgrading the majesty of the Tribunal', a signal of 'utmost admiration'

 Below are the most recent orders of the International Crimes Tribunal-2 passed on 3 March and 18 March 2015 (which are of a similar nature) 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 understand these proceedings read the following:

 Read about: The background to these proceedings

 28 Dec 2014: To 'Protect its jurisdiction and authority'

 14 Jan 2015: 'Explain yourselves'

 11 Feb 2015: The New York Times's 'unwarranted and derogatory comment'

 23 Feb 2015: Throw yourself 'at the mercy of this tribunal'

 In relation to the most recent orders set out below, the language of the first paragraph in each of the orders is the most interesting. I make no comment.

 '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.

 3 March 2015

 Today is fixed for passing order.

 Today 10 persons namely, Dr. Perveen Hasan, Mr. Ali Riaz, Ms. Tahmina Anam, Mr. Md. Nur Khan, Ms. Faustina Pereira, Ms. Deuty Sabur, Mr. Firdous Azim, Ms. Samia Huq, Mr. Mohiuddin Ahmed and Ms. Sarah Tasnim Shehabuddin by filing applications have expressed their remorse for the comment they made regarding the conviction of David Bergman. They have also unconditionally apologised for their comments and craved mercy of the Tribunal to exonerate them from further prosecution. 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 above 10 persons finding it just and proper for their remorseful disposition. Thus, we exonerate them from further prosecution.

 By filing applications Ms. Nihad Kabir, the learned advocate representing 8 citizens namely, Mr. Masud Khan, Mr. Afsan Chowdhury, Mr. Ziaur Rahman, Ms. Hana Shams Ahmed, Mr. Anu Muhammad, Ms. Anusheh Anadil, Ms. Muktasree Chakma and Ms. Lubna Marium prayed for some more time for filing their proper explanations.

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

 Considering all aspects, we are of the view that justice would be met if the aforesaid 16 persons are given some more time to clarify their position to give their proper explanation. Accordingly, the prayers are allowed.

 It appears that two persons namely, Dr. Bina D' Costa and Mr. Abrar have sent some papers to the office of the Tribunal stating why they could not file proper explanation by today, and rest distinguished persons who made the statement through the Bangladesh Missions of the respective countries where they are presently residing have sought for some more time to send their proper explanation.
 Considering all aspects, we are of the view that justice would be met if we allow the applications seeking adjournment. Accordingly, the hearing of the matter is adjourned till 18.03.2015.

 Record shows that no reply has yet come from the Editorial Board of the international daily the New York Times till today. Necessary order will be passed on the date fixed on this matter.

 Let this matter be posted in the list on 18.03.2015 for order.
 18 March 2015

 Today is fixed for passing order.

 By filing an application Dr. Dina M. Siddiqi has expressed her remorse for the comment she made regarding the conviction of David Bergman. She has also unconditionally apologised for her comments and craved mercy of the Tribunal to exonerate her from further prosecution. Her such introspection has not only upgraded the majesty of the Tribunal but also signify her 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 her finding it just and proper for her remorseful disposition. Thus, we exonerate her from further prosecution.

 By filing an application for adjournment on behalf of 10(ten) persons namely, Masud Khan, Afsan Chowdhury, Ziaur Rahman, Hana Shams Ahmed, Anu Muhammad, Anusheh Anadil, Muktasree Chakma Sathi, Lubna Marium, Farida Akhter and Md. Rezaur Rahman, Mr. Asaduzzaman, the learned advocate prays for adjournment of the case till 01.04.2015 as a last chance.

 By filing similar applications Ms. Shirin Huq prayed for some more time on behalf of her and rest 4 persons who are appearing in the Court in person.

 Considering all aspects, we are of the view that justice would be met if the aforesaid 15 persons are given some more time to clarify their position to give their proper explanation. Accordingly, the prayers for adjournment are allowed as a last chance.

 Let this matter be posted in the list on 01.04.2015 for order.

 David Bergmanhttp://firstname.lastname@example.com:blogger.com,1999:blog-6772259882748892857.post-47560947970776283512015-02-27T00:30:00.002+06:002015-03-02T20:17:21.890+06:00Throw 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.

 David Bergmanhttp://firstname.lastname@example.com:blogger.com,1999:blog-6772259882748892857.post-88190931486852323462015-02-21T16:34:00.002+06:002015-02-21T16:49:25.408+06:00Geoffrey 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."

 David Bergmanhttp://email@example.com:blogger.com,1999:blog-6772259882748892857.post-67599308152350222772015-02-19T21:12:00.000+06:002015-02-21T16:45:39.307+06:00Geoffrey 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.

 He goes onto say:

 As will appear, I am no advocate of the policies of the Jamaat or of the Awami League or of the Bangladeshi or Pakistani governments, then or now, and contemporary Bangladeshi politics are not my concern.
 IFDHR provides consultancy on international law. Toby Cadman is one of the four members of the management board. The organization seems to be a spin-off from the TMC Advisory Group which many of the same people, including Cadman, is involved.

 Toby Cadman is the chief international defense lawyer representing the Jamaat-e-Islami accused at the ICT in Bangladesh, so it is reasonable to assume that the IFDHR is, in this context*, simply a vehicle by which to instruct Roberston to produce this report, and then to publish it - and that Cadman was in effect seeking this report on behalf of his clients. And no doubt the Jamaat, or others representing the Jamaat, paid for it.

 I asked Geoffrey Robertson how he would respond to those who claimed, as a result of how the report was commissioned, that it was wrong to suggest it was "independent". He started of by saying that such a claim was 'absurd as anyone who actually reads my report will realise.' He then went onto say that:

 "The Report was not commissioned by the Jamaat, but by an NGO called the International Forum for Democracy and Human Rights, with which Toby Cadman and 9 Bedford Row ( a rival chambers to mine) are connected – it was their concern at being unable to represent the Jamaat, and their desire to have the Court analysed by an expert of recognized independence that they approached me. I accepted their invitation on condition that the Report would be entirely my work and no-one else would play any part in writing it or on preparing it for publication. That agreement has been honoured. I would hardly sacrifice my reputation for independence for the Jamaat, an organization with whose policies and beliefs I have no sympathy at all. Moreover, I am an English Queens Counsel, bound by the strict ethics of the bar to write honest opinions, without fear of favour, no matter how much it might distress the party that instructs me.

 "I have no connection, personal or professional, with the Jamaat or its defence lawyers, and my Report is based entirely on court transcripts, statutes and footnoted reports and articles. I make some criticisms of Jamaat defence lawyers (for trying to call hundreds of irrelevant witnesses, for example, and failing to raise certain legal arguments) and I salute the Tribunal's "positive achievement" in "establishing beyond any doubt, the scale and the bestiality of the murders and rapes in East Pakistan in 1971".

 "For all those reasons, and more, the reader can be sure that the Report really is "independent".
 He also added an interesting connection he has to the 1971 war:

 "I have visited Bangladesh to speak on international justice (with Helen Clarke, at a UNDP Conference a few years ago) but otherwise have no connection wit the country or its history. Unless you count my brother's wife's stepfather, the leading Sydney abortionist, Dr Geoffrey Davis, who went there in 1971-2 to relieve the victims of Pakistani army rapes. It is his estimate of 200,000 rapes that the government accepts today."
 How should one assess this?

 The first point to make is that Geoffrey Robertson is not a person who anyone can reasonably argue has any personal bias towards the Jamaat - if anything, because of his connection with Dr Geoffrey Davis, one could argue that he had reason to take a position against the party. In addition, of course, his competence to undertake an assessment of the fairness of these international criminal proceedings can not be brought into question.

 The second point is that, Geoffrey Robertson states clearly that he only took the commission on the basis that he was allowed to work on it independently and that the work would be solely his own. He also makes the point that he is, in any case, bound by strict ethics of the bar to provide an honest opinions. It is notable that in a number of significant ways, the report does take a position which differs from the Jamaat's legal arguments.

 Nonetheless, the fact that the report was commissioned by the Jamaat's defense lawyer - and not for example by an organization which had absolutely no ties to the Jamaat (like for example Amnesty International or Human Rights Watch) does allow legitimate questions to be raised and reduce the authority the report would otherwise have.

 I would therefore suggest that it was misleading for Doughty Street chambers to describe the report in its press release as 'independent' without also explaining that it was commissioned by Jamaat-e-Islami defence lawyers.

 * There is no suggestion meant that IFDHR has been set up for this purpose. Only that commissioning by IFDHR has the effect of distancing the Jamaat from the commissioning process.
 David Bergmanhttp://email@example.com