Fourth edition of ‘Abuse of Process in Criminal Proceedings’ now covers international criminal proceedingsThe new edition of the leading textbook, ‘Abuse of Process in Criminal Proceedings’, now includes a chapter analysing the application of the abuse of process doctrine in international criminal law proceedings. Authored by Sarah Bafadhel, of 9 Bedford Row, the chapter is the most comprehensive review of the doctrine before international criminal courts to be included in a practical textbook on the subject. It reflects the caselaw concerning the doctrine as applied before the ICC, ICTY, ICTR, STL and ECCC. Aimed at practitioners, this fourth edition remains an essential guide to all areas of the law relating to abuse of process in criminal law. As part of the Bloomsbury Professional Criminal Practice Series, the text is authored by David Young, also of 9 Bedford Row, alongside Mark Summers QC, of Matrix Chambers and David Corker, of Corker Binning. See more at: http://www.bloomsburyprofessional.com/uk/abuse-of-process-in-criminal-proceedings-9781780432175/#sthash.DBb29T4X.dpuf The new edition of the leading textbook, ‘Abuse of Process in Criminal Proceedings’, now includes a chapter analysing the application of the abuse of process doctrine in international criminal law proceedings. Authored by Sarah Bafadhel, of 9 Bedford Row, the chapter is the most comprehensive review of the doctrine before international criminal courts to be included in a practical textbook on the subject. It reflects the caselaw concerning the doctrine as applied before the ICC, ICTY, ICTR, STL and ECCC. Aimed at practitioners, this fourth edition remains an essential guide to all areas of the law relating to abuse of process in criminal law. As part of the Bloomsbury Professional Criminal Practice Series, the text is authored by David Young, also of 9 Bedford Row, alongside Mark Summers QC, of Matrix Chambers and David Corker, of Corker Binning. See more at: http://www.bloomsburyprofessional.com/uk/abuse-of-process-in-criminal-proceedings-9781780432175/#sthash.DBb29T4X.dpuf | 9 Bedford Row International instructed to advise the Defence at the Military Commission, Guantanamo Bay, Cuba9 Bedford Row International instructed to advise the Defence at the Military Commission, Guantanamo Bay, Cuba By Toby Cadman and Eeva Heikkila On 21 October 2013, Toby Cadman and Eeva Heikkila travelled to Guantanamo Bay, Cuba as part of the defence team for one of the five so-called ‘High Value Detainees’ facing trial on war crimes and terrorism charges arising out of the 9/11 Attacks. Toby and Eeva have been instructed to advise on various aspects of international humanitarian law and allegations of torture in US custody. During the pre-trial hearings the 9BRi Team was able to observe the workings of the Military Commission and experience the difficulties a military trial presents first had. The focus during the October pre-trial hearings was an issue many thought was in no need of discussion; whether the prohibition of torture was absolute and whether victims of torture have a right to an effective remedy. In Guantanamo language, what was discussed was essentially whether it is possible for a State Party to the Torture Convention to classify information about methods of torture, in the present case, as to whether the US could classify the CIA Rendition, Detention and Interrogation Programme (RDI). On 9 February 2013 the Commission entered a Protective Order “in order to protect the national security”. The Order applies to all persons and all information related to the case. In particular, the Order lists as classified the enhanced interrogation techniques, including descriptions of the techniques as applied, the duration, the frequency, sequencing and limitations of those techniques, the identities and physical descriptions of any persons involved in the interrogation, detention or capture. The Government has taken the unprecedented step, through the Protective Order, by classifying, without limitation, the observations and experiences of the accused from their time in US detention. It is the concept of classifying the observations and experiences of individual detainees that is the subject of such controversy. The Prosecution has naturally welcomed the Order, stating that the classification is necessary simply because the detainees have been exposed to top secret “methods produced by the US government”. It was noted by one defence counsel during the pre-trial that if this makes sense then one could claim that the residents of Hiroshima were similarly exposed to information of the Manhattan Project by the US Government and their experiences and observations were classified. It was further argued by the defence that that any gagging over torture constitutes a violation of the Convention and US Law has been brushed aside by the Prosecution by stating that all five detainees chose to expose themselves to the confidential US “methods” voluntarily, when they decided to attack the United States of America, and that therefore it constitutes information that is properly “classifiable” by the US Government. During legal argument a number of important matters were debated. The defence teams argued extensively that the US was bound by customary and conventional international law. The US is a State Party to the Torture Convention and it is clearly a part of US law. The Prosecution responded to the effect that (a) the Torture Convention was not a self-executing treaty and therefore in the absence of any implementing legislation it had no application in domestic courts; (b) customary international law and peremptory norms only applied in the US to the extent that the Executive determined. Needless to say both arguments were unsustainable as a matter of law and policy and will further legal argument is expected during the pre-trial hearings in December and February. The defence team, of which 9 Bedford Row’s Toby Cadman and Eeva Heikkila are instructed, are now challenging one of the most significant issues in the field of civil liberties today. The Defence now seeks to strike down the Protective Order as in breach of fundamental human rights principles, not to say US domestic law, concerning the use of torture. If this protective order is left to stand the Convention against Torture, International Covenant on Civil and Political Rights and the United States Constitution, will not apply to the five detainees awaiting trial. However, this of course runs far deeper than the five detainees waiting to stand trial for the 9/11 attacks. This is about justice and accountability. This is about US policy on the widespread use of torture. It is about circumventing the rule of law to bring about a desired result. The prohibition on torture is absolute. It is not permitted in time of war or any other emergency. It has the status of a peremptory norm or jus cogens. It is contained in a number of international treaties, namely: Universal Declaration of Human Rights; Geneva Conventions; International Covenant on Civil and Political Rights; UN Convention against Torture and now the Rome Statute to the International Criminal Court. Its prohibition is also set out in a number of regional human rights treaties. Under US Law, torture is defined under 18 U.S.C. § 2340 and the US Supreme Court has held that torture is prohibited by the Eighth Amendment to the Constitution. Furthermore, in 2006, the US Military updated its operational field manuals on intelligence collection (FM 2-22.3. Human Intelligence Collector Operations, September 2006) and counterinsurgency (FM 3-24. Counterinsurgency, December 2006) to confirm that “no person in the custody or under the control of DOD, regardless of nationality or physical location, shall be subject to torture or cruel, inhuman, or degrading treatment or punishment, in accordance with and as defined in U.S. law.” At the end of the week’s hearings the defence held a press conference. Toby Cadman spoke on behalf of the defence stressing the need to address the allegations of torture before the trials can properly start. He stressed that there was a duty to hold an effective investigation and if evidence is disclosed to prosecute and provide proper punitive measures. Toby concluded by stating “The US is considered around the world to be a beacon of human rights and democracy. This chapter risks sending the US back to the dark ages.” It remains clear that it will take some time before the trials are anywhere near close to starting. Twelve years after the attacks and at least ten years after the HDVs were first arrested. The families of the victims, who travel to Guantanamo to observe the proceedings, are naturally frustrated. They blame the defence for the delay when they are forced to listen to five days of pre-trial hearings dealing with intercepted privileged mail and details of torture in CIA custody. It is predicted that the trial of the five HDVs will not start until at least Winter 2014. It is then predicted that the trial will last several years. The one thing is for sure that this is not something that will be completed under the Obama administration. | 20 Mar 13: David Hammond is made an Honorary Research Associate to the Greenwich Maritime Institute, London by Professor Christopher Bellamy.Professor Bellamy, Director of the Greenwich Maritime Institute awarded David Hammond the accolade in response to his contributions to the maritime industry in the development of the first commercial model set of rules of the use of force for armed guards operating from commercial vessels. Honorary Research Associateships are only awarded to established distinguished maritime scholars and professionals from the UK, Europe and overseas with the aim to promote research and teaching in the field of maritime studies | Kremlin Opens New Posthumous Case Against Magnitsky Holding him Responsible for Russian Default in 19981 February 2013 – Today it was reported by RIA-Novosti Russian news service that Russian law enforcement agencies have begun investigating Sergei Magnitsky for allegedly being responsible for the Russian default during the 1998 financial crisis. This is the fourth posthumous accusation put forward by Russian authorities, who refuse to investigate officials responsible for the thefts uncovered by Mr Magnitsky, his arrest, ill-treatment and death in custody. Mr Magnitsky died more than three years ago, on 16 November 2009 when he was found dead on the cell floor after the use of rubber batons and handcuffs. “The Russian authorities look like they have gone completely mad,” said a Hermitage Capital representative. “In their attempt to escape from US and EU visa and financial sanctions for the death of Mr Magnitsky, they are coming up with crazier and crazier attacks against Magnitsky in the hope of clouding the debate about who killed him and why.” RIA Novosti reported that a source in the Russian law enforcement agencies said “We can talk about fraudulent schemes before the default in Russia in 1998, when the Federal Reserve Bank of New York wired $4.8 billion intended for the stabilization of operations of the Central Bank of Russia to the account of Republic National Bank of a Browder’s companion Edmond Safra. Subsequently, it was not possible to trace the money, Safra died in the fire in Monaco in 1999,” ( http://russian.rt.com/Russia/3721/) The same source told RIA Novosti that the Russian law enforcement agencies are initiating a further posthumous case against Magnitsky for “illegal purchasing of Gazprom shares”. The trading of Gazprom shares by locally-held branches of foreign firms was reviewed at the time by the Russian Federal Securities Commission, who found that those purchases were in compliance with Russian law. The purchase of Gazprom local shares by foreigners was organized by Gazprom’s own bank as well as dozens of market participants. “Following the ban on adopting orphan’s, the expulsion of USAID, the termination of cooperation in drug trafficking, the Russian government is now issuing multiple posthumous accusations against Sergei Magnitsky, one more outrageous than the next, and clearly following a political order from the very top,” said a Hermitage Capital representative. For further information please contact: Hermitage Capital Phone: +44 207 440 1777 Email: info@lawandorderinrussia.org Twitter: @KatieFisher__ | UN Working Group on Arbitrary Detention Condemn Bangladesh ICTBelow is a statement by Toby Cadman concerning the UN Working Group on Arbitrary Detention's recent findings on the arbitrary and unlawful detention of Messrs. Azharul Islam, Ghulam Azam, and Mir Quasem Ali. All three of which are currently facing charges of crimes against humanity and genocide before the International Crimes Tribunal in Bangladesh. On 23 November 2012 the United Nations Working Group on Arbitrary Detention (hereinafter: Working Group) adopted Opinion No. 66/2012 (“Bangladesh”) at its 65th Session. The Opinion will be reproduced in the Working Group’s annual report to the Human Rights Council (hereinafter: HRC) who will expect to hear the response from the Government of Bangladesh (hereinafter: Government) on 5 March 2013. As is set out in the opinion, Bangladesh is a state party to the International Covenant on Civil and Political Rights (hereinafter: ICCPR) and, as such, it is expected to promote and uphold the rights contained therein. The Working Group received the communication alleging the arbitrary and unlawful detention of Messrs. Azharul Islam, Ghulam Azam, and Mir Quasem Ali (hereinafter: Accused). The three members of the Bangladesh Jamaat-e- Islami political party were reportedly arbitrarily detained without charge during the pre-trial proceedings of the Bangladesh International Crimes Tribunal (hereinafter: Tribunal), despite their voluntary submission to stringent conditions negating the risk of absconding, interfering with witnesses or reoffending. In relation to all the accused, the Tribunal repeatedly refused bail on the basis that their ill-health was not sufficiently serious to justify being remanded on bail and also on the grounds that bail was a privilege that they were not entitled to in such cases. The Working Group addressed a communication to the Government on 14 September 2012 concerning these three cases. The Government failed to reply. In reaching its conclusion on the matter before it, the Working Group looked at the presumption in favour of bail and the burden of proof. In particular the Working Group reinforced the principle that bail is right and not a privilege. The Working Group stated that pursuant to article 9(3) ICCPR, it shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings. Further, it recalled that the Human Rights Committee, the body charged with interpreting the ICCPR, emphasised that pre-trial detention should be an exception rather then the rule. The Working Group accepted that it had previously held that “a judge may legitimately allow the exception (detention) to prevail over the rule (release) in the case of international crimes or, in national legal systems, of extremely grave crimes” (see Deliberation No. 6), however it qualified this finding by aligning itself with the position of the European Court of Human Rights that the seriousness of the offence “can be regarded as relevant and sufficient only provided that it is based on facts capable of showing that the accused’s release would actually prejudice public order. In addition, detention will continue to be legitimate only if public order remains actually threatened” (Tomasi v France). With regards to the second point, the Working Group stated that the burden of proving that an accused person would fail to surrender, re-offend, or interfere with witnesses falls squarely on the prosecution. Despite this clear rule, it found that in proceedings before the Tribunal, despite not having any proper reasons to do so, the judges had shifted the burden to the accused who have to show “exceptional circumstances to qualify for provisional release”. The Working Group found that the Tribunal had a “flawed approach” and “effectively reversed the burden of proof from the prosecution to the accused and made the pre-trial release on bail the exception rather than the rule”. It concluded, “Messrs Islam, Azam and Ali have been deprived of liberty in violation of the principle that release must be the rule and provisional detention the exception as provided for in article 9 of the UDHR and article 9 of the ICCPR”. It held that the case falls in Category III of the categories applied by the Working Group and called the Government to conform with the standards and principles set out in the UDHR and ICCPR and to reconsider the applications for bail by the three accused. In closing, the Working Group indicated that the allegations of torture or cruel, inhuman treatment to the Special Rapporteur on torture. It is reported that such a communication was made on 3 December 2012. In it the applicant submitted that Professor Azam’s medical condition, the inadequacy of his medical assistance and care provided whilst in detention; and the advisability of maintaining the detention measure in view of the state of health of the applicant (Mouisel v France) meant that his continued detention amounted to torture. Further, it submitted that a lack of immediate treatment might also be tantamount to torture (Hurtado v Switzerland). It was recalled that the European Committee for the Prevention of Torture (CPT) had stated that “an inadequate level of health care can lead rapidly to situations falling within the scope of the term ‘inhuman and degrading treatment’.” Accordingly, it argued that the following conduct by the prison authorities towards Professor Azam, namely, the lack of immediate action by the prison guards; the ill-treatment of the Accused-Petitioner by prison guards; the order for his immediate return to his prison cell following a stroke; the denial of neurological treatment, prescribed diet and recuperation time with appropriate medical supervision; the subsequent scheduling by the Tribunal of the continuation of proceedings only two days later; the denial of his prescribed dietary requirements; the failure to insure assistance when bathing, cleansing or going to the toilet; the failure to insure the availability of warm water for ablutions; and the slow provision of general medical assistance; amounted to torture under Article 3 ECHR. | Experienced Bangladesh Journalist Responds to Foreign Minister's Statement on First Conviction at ICT On Thursday 24 January 2013, following the conviction of Abul Kalam Azad, diplomats were called by the Foreign ministry to hear a statement from the foreign minister Dipu Moni where they were also shown video of footage of the aftermath of some 1971 atrocities. The full statement is repeated below, followed by David Bergman's response. Opening Statement by Hon'ble Foreign Minister at the Diplomatic Briefing on the Maiden ICT Judgment at 18h00 on Thursday, 24 January 2013 Excellencies, Heads of international organisations, Members of the Diplomatic corps, Dear friends and colleagues, I thank you most sincerely for your presence here this evening. This week our nation witnessed a historic moment with the passing of the maiden judgment by the International Crimes Tribunal. I felt I should brief you about the judgment and the Government's perspectives on the overall process. As you are already aware, on 21 January 2013, the International Crimes Tribunal-2 of the International Crimes Tribunal of Bangladesh (ICT-BD) delivered its judgment in the case of 'The Chief Prosecutor Vs Abul Kalam Azad Bacchu (Absconding)(ICT-BD Case No. 05 of 2012), and found the accused 'guilty of the offences of Crimes Against Humanity and Genocide' and convicted and sentenced him to death under section 20(2) of the International Crimes Tribunal Act of 1973 (ICTA). The verdict was given after the Tribunal found the accused guilty of 'abduction, confinement and torture, murder, rape and genocide (killing the members of the Hindu community)' as listed in charges 1,3,4,5,6,7,8 of the case. The Tribunal further ruled that since the convicted has been absconding, the sentence of death as awarded would be executed after his arrest or upon his surrender to the Tribunal, whichever is earlier. The judgment confirmed that the convicted committed the crimes he had been charged with in his capacity as a member of the "Razakar", an auxiliary force created in 1971 through official gazette notification with the purpose of committing atrocities against the Bengali population, particularly targeting pro-liberation intellectuals and members of the Hindu community. The convicted is currently not affiliated with any political organisation and is reportedly the Chairman of an NGO called 'Masjid 1 Council'. The Tribunal has concluded that he had deliberately absconded, and also left the country to evade the process of justice, which further vindicated his culpability. By way of background, it may be helpful to recall that the ICT-BD, a national Tribunal of Bangladesh, was constituted in March 2010 (Tribunal 1) and March 2012 (Tribunal 2), as per law, as independent, open and transparent Court. The Tribunals have the jurisdiction to try the commission or attempt, abetment or conspiracy to commit crimes against humanity such as murder, rape, torture etc., crimes against peace, genocide, war crimes, violation of humanitarian rules applicable in armed conflicts as enshrined in the Geneva Conventions of 1949 and any other crimes under international law. The ongoing trials of the accused persons are being conducted in open tribunals witnessed by the relatives of the accused, the media and independent observers to ensure full transparency to meet the requirements of fair trial in compliance with the standards invoked in other trials of international crimes committed around the globe and historically. The trial proceedings are being observed and monitored by the prosecutors and defense counsels and the accused persons through separate computer monitors set up for them in the court rooms. The Rules of Procedure of the Tribunals ensure due process and provide guarantee of all internationally recognized human rights standards for the accused as well as protection measures for victims and witnesses. The recent judgment provides a fairly comprehensive account of the relevant provisions of ICTA and its Rules that are in consonance with the International Covenant on Civil and Political Rights in particular. The Judges of the Tribunals are fully independent in their conduct and have maintained utmost neutrality and transparency. Recently, the Chairman of Tribunal-1 resigned and the Tribunals were reconstituted according to law. According to the provision of ICTA, the proceedings of the cases are continuing in the aftermath of such reconstitution. The accused persons had the right to engage one or more counsels who should be enrolled as legal practitioners of the Bangladesh Bar Council. In case of absentia trial, the Tribunals have the authority to engage a State Counsel as per section 2 12 of ICTA. This has indeed been the case with the case that has just been disposed of, where the accused has been absconding. In case of another accused, there has been the unprecedented instance of the defence counsel cross-examining a prosecution witness for long 45 days. With the conviction of the first of the 14 presentiy accused, the Tribunals currently have 11 cases under trial, with two cases at the final stage. I think I should reiterate here that the ICTBD, is a domestic tribunal with a mandate to try internationally defined crimes under the ICTA with a view to bringing to justice the perpetrators of one of the most heinous genocides and crimes against humanity of the 20'h century, committed on the soil of Bangladesh in 1971. It needs to be darified that this justice process was never part of any intervention by the international community, nor a result of any international compromise, unlike most justice initiatives of its kind that have taken place in the international arena. The justice process that this Act envisaged setting up is pureiy a domestic process. This means, the International Crimes Tribunals in Bangladesh is not 'international' in nature, but for all meaning and purposes they are 'domestic'. The only international element in the whole scheme of things is the nature of the offences, that is, the "international crimes". Aithough these crimes, due to their nature and trajectory of developments, have historically been a part of international criminal law, the ICTA internalized these crimes and thus made them a part of the jurisprudence of the Tribunal and of Bangladesh's legal system. It, in fact, should be seen as internalization of international law in Bangladesh's domestic legal order, which was done pursuant to Bangladesh's internationai obligations to deal with international crimes and ensure justice to millions of victims of crimes committed in 1971. Coming back to the recently-delivered judgment itself, we see it as a dear vindication of our Government's commitment to build a secular, democratic polity that cherishes its multi-religious, multi-ethnic and multicultural characters. The crimes committed by the convicted, apart from being of heinous criminal nature, amounted to an affront to these values that this nation had embraced as the hallmark of its freedom struggle. Secondly, the detailed background information provided by the judgment, particularly about the convicted, makes it abundantly dear that there has 3 been no political motive behind holding these trials, as has often been wrongly perceived and projected by certain sections of the international community and media. The prosecution account of the cases pending before the Tribunals would make it clear that none of the accused has been brought to trial considering their political involvement or affiliation with any political party. The only reference point for the prosecution had been the crimes alleged to have been committed by them during the War of Liberation in 1971, and not their political affiliation or orientation at the time of the commission of the crimes or later. Thirdly, it sends out a strong message that Bangladesh has now evolved as a society where there would not be any space for the culture of impunity, or what I often refer to as the "horrors of impunity". The Tribunal, in its judgment, has reaffirmed that no person guilty of committing such atrocious crimes, as have been proved beyond doubt against the convicted, should stay outside the reach or purview of justice as it tends to give validity to the culture of impunity, and that prolonged impunity and related denial of truths allow "old wounds to fester and make the victims suffer post-traumatic stress". I would invite you to imagine what a post-war Europe would be like without trials for warJ)Ycrimes, genocide and crimes against humanity, and the perpetrators of such crimes allowed to roam around freely amongst the victims and their families or assume State power. In Bangladesh's case, due to the deliberate and prolonged impunity that had been allowed by the State to those responsible for the crimes - since the killing of the Father of the Nation Bangabandhu Sheikh Mujibur Rahman on 15 August 1975 - a deep, raw wound has been inflicted in our national conscience and psyche, which I believe is somewhat responsible for the ruptures we witness at times in our socio-political fabric. Our Government has been making unstinting efforts to heal these long-festering wounds and to mend the fissures in our political culture and socio-cultural values. This is a difficult exercise no doubt, but the Party that helped this nation achieve its independence must also undertake the challenging task of building it on a firm footing so that no forces can deviate it from its course and slow down the process of the political and economic emancipation of its people that we had all fought for. Comments by David Bergman 1. International standards, due process This is really quite a passage. The ongoing trials of the accused persons are being conducted in open tribunals witnessed by the relatives of the accused, the media and independent observers to ensure full transparency to meet the requirements of fair trial in compliance with the standards invoked in other trials of international crimes committed around the globe and historically. The trial proceedings are being observed and monitored by the prosecutors and defense counsels and the accused persons through separate computer monitors set up for them in the court rooms. The Rules of Procedure of the Tribunals ensure due process and provide guarantee of all internationally recognized human rights standards for the accused as well as protection measures for victims and witnesses. The recent judgment provides a fairly comprehensive account of the relevant provisions of ICTA and its Rules that are in consonance with the International Covenant on Civil and Political Rights in particular. The idea that this tribunal meets 'the requirements of fair trial in compliance with the standards invoked in other trials of international crimes committed around the globe' lacks all credibility. Proper defence preparation time is not allowed; number of defense witnesses is arbitrarily curtailed; refusal to issue any summons for defense witnesses; defense case closed before they have called their witnesses; a witness abducted outside court without proper investigation; no right to appeal any interlocutory order. The list really goes on and on. And this is before one even considers the revelations from the hacked skype and e-mail conversations between Justice Nizamul Huq and the expatriate lawyer, Ziauddin Ahmed - which strongly points to unlawful collusion between the prosecutors, certain tribunal members and government ministers, and the contents of which have not been rebutted by any of those parties. This collusion involved drafts of key court documents being passed between the prosecution and the tribunal, apparent meetings between ministers and judges, and between judges and prosecutors, and the sacking of a tribunal judge by the law minister. So the tribunal are far from international standards. Also, in some ways the tribunal provides far less rights than ordinary Bangladesh courts, so it cannot even be said to comply with Bangladesh standards. However it should be noted that these tribunals have certainly been progressive by providing certain jail welfare rights to the accused as well as privileged communication between the accused and the lawyers - which are not normally given to most accused detained in Bangladesh jails. 2. Independence of judges The foreign minister stated: 'The Judges of the Tribunals are fully independent in their conduct and have maintained utmost neutrality and transparency.' Unfortunately, the Skype conversations - which indicate significant contacts between the government, the prosecutors and the judiciary, as well as the apparent sacking by the law minister of one of the judges - suggest that the 'utmost neutrality' which Moni is talking about is missing. 3. Defence witness questioning Moni's reference to the 'unprecedented instance of the defence counsel cross-examining a prosecution witness for long 45 days' - which refers to questioning of the investigation officer in the Sayedee case - is somewhat misleading. First, because it was not 45 full days - almost all of those days were half days. Secondly, the prosecution had itself examined him for a 9 full days (i.e 18 half days) and had used the witness to admit all their documentary evidence which ran to thousands of pages, and he was the only witness available for the defense to question on these documents. Thirdly, the tribunal itself had said throughout the questioning of the defense witnesses, that the defense lawyers could only ask certain questions to the investigation officer. Fourthly. the defense had to question the investigation officer on issues emanating from the safe custody house controversy. Nonetheless, the tribunal does need to be given credit for allowing the investigation officer to be questioned for a significant length of time. (However, it should also be noted that after the cross examination of the investigation officer had concluded, the Tribunal severely restricted the defense's right to call witnesses - in terms of numbers of witnesses that could be called and in terms of the time in which they were allowed to be called.) 4. Political motive Moni argues that 'the detailed background information provided by the [Azad] judgment, particularly about the convicted, makes it abundantly dear that there has been no political motive behind holding these trials, as has often been wrongly perceived and projected by certain sections of the international community and media.' There is much that can be said about political motives in these trials, but I shall limit comments to Moni's argument - that the background information in the Azad judgment refutes the allegation of political motivation. What is odd about this comment is that the introductory sections of the Azad judgement actually contains paragraphs which could be construed as suggesting a political motivation in the tribunal as they focus on Jamaat-e-islami's role in creating auxiliary forces and involvement in atrocities even though (a) Azad was not a member of Jamaat at the time he is alleged to have committed the crimes (b) they are not based on any evidence that was provided to the court (c) these are matters being contested in other trials. 5. Impunity and Europe Moni is right to point positively to the government's decision to hold war crimes trials - it is certainly commendable that the government decided to take on the issue of accountability for 1971 war crimes. However, the decision to deal with impunity is a totally separate one from the actual process of accountability. And whilst the first part is to be commended, unfortunately, the second part of the equation can be subject to legitimate criticism. Moreover, when it comes to dealing with impunity, this government (as with every other government in the past in Bangladesh) has been very partial and one-sided about when they press for accountability. So whilst the Awami League government deals with 1971 crimes now, and previously dealt with accountability for the murder of Sheikh Mujib, it totally ignores* it has failed to take significant actions following most of the the extra judicial killings and disappearances in Bangladesh over the last three years. Perhaps the most recent significant contradiction between Moni's praise for its mission of accountability and the reality, relates to the abduction of the defense witness Sukrhanjan Bali (for which the government's law enforcement agencies were almost certainly responsible), where the government has denied it, and no investigation has been undertaken. Amendments * Following comment (see below) last para has been amended so the sentence, 'it totally ignores all the extra judicial killings ...' has been changed to 'it has failed to take significant actions following most of the the extra judicial killings ...' (Jan 30, 2013) For further information on Bergman's blogspot please click here. | Amnesty International Demands the Russian Government Halt the Unprecedented Posthumous Prosecution of Sergei Magnitsky Which Starts Today 28 January 2013 - The forthcoming trial of dead whistle-blowing Russian lawyer is a “travesty” and a “sinister” attempt to deflect attention from those who committed the crimes he exposed, said Amnesty International, ahead of the posthumous trial which begins in Moscow today. John Dalhuisen, Director of Europe and Central Asia for Amnesty International, said: “This posthumous prosecution is farcical, but unfortunately also deeply sinister.” “The Russian authorities’ intention to proceed with the criminal prosecution of Sergei Magnitsky violates his fundamental rights even in death, in particular the right to defend himself in person.” “The trial of a deceased person and the forcible involvement of his relatives is a dangerous precedent that would open a whole new chapter in Russia’s worsening human rights record.” “The authorities must halt this travesty,” said John Dalhuisen. The trial will be taking place at 11am, January 28, 2012 at the Tverskoi Court in Moscow (25a Tsvetnoi boulevard). The presiding judge is Judge Alisov. This is the same judge who presided over a special proceeding in March 2011 in which Vyacheslav Khlebnikov, an unemployed ex-convict was assigned a significant part of the blame for the complex $230 million tax rebate fraud uncovered by Sergei Magnitsky. In that same ruling by Judge Alisov, Russian state employees were exonerated in that fraud. For further information please contact: Hermitage Capital Phone: +44 207 440 1777 Email: info@lawandorderinrussia.org Twitter: @KatieFisher__ Amnesty international | ICCSN Speaker Series Steven Kay QC will be addressing The International Criminal Court Student Network (ICCSN) at the University of Cambridge Law Faculty as part of the ICCSN Speaker Series 2012-2013 on Tuesday 30 January 2013. The speech will be upon Regime Change and International Law. | Bangladesh War crimes blog: Adequacy of Azad's trial examined On 22 January 2013, Abul Kalam Azad was convicted of one offence of genocide and six offence of crimes against humanity in the first judgement of the Bangladesh war crimes tribunal (ICT). He has been sentenced to death. Below is the first of a number of analyses compiled by Dhaka-based journalist, David Bergman, looking at the shortcomings of the trial and judgement. It points out that - in contradiction to what was stated in the judgement - the manner in which the in absentia trial took place is not supported by any international court/tribunal practice and would almost certainly be deemed in breach of the International Convention on Civil and Political rights as there was a serious lacking in the adequacy of the defense lawyer appointed by the tribunal. Also, for those interested to read the details of the charge framing, witness testimony, cross examination and the judgement, this page provides links to all the proceedings during the trial For further articles on the ICT by David Bergman, please click here or alternatively follow on twitter. | Estonian Authorities Have Traced $10 Million of Stolen Russian Government Money Uncovered by Sergei Magnitsky It was also reported that the Estonian authorities had found that ten different companies have been used to transfer the money, according to the Business TASS agency in Talinn ( http://www.biztass.ru/news/id/55661). According to the Estonian authorities, the money was wired via internet banking to various persons in other jurisdictions. “The uncovering of the trail of money is a substantial breakthrough in the investigation of the criminal conspiracy exposed by Hermitage and Sergei Magnitsky,” said Hermitage Capital representative. In total, $230 million that had been paid in taxes to the Russian government by the Hermitage Fund in 2006 was stolen the following year from the Russian treasury by a group of corrupt Russian officials working together with organized criminals. Sergei Magnitsky discovered and testified about the thefts and was subsequently arrested and killed in Russian police custody at the age of 37. Three years later, no one has been convicted for his death. For further information please contact: Hermitage Capital Phone: +44 207 440 1777 Email: info@lawandorderinrussia.org Twitter: @KatieFisher__ |
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