Human Rights Watch Concern At Bangladesh War Crimes Tribunal Intimidation

Human Rights Watch has raised concerns over intimidation of the Defence that has been taking place at the Bangladesh War Crimes Tribunal. The lack of protection measures for Defence witnesses is apparent as this Tribunal which has been structured to be skewed against the Defence.
HRW has previously criticised the lack of fairness in the proceedings at the Bangladesh ICT, but this is a further concern related to the impartiality of the investigation team.

See here for further information: http://www.hrw.org/news/2011/11/02/bangladesh-stop-harassment-defense-war-tribunal

ICLB Receives Lexis Nexis Blog of the Year Nomination

The International Criminal Law Bureau has been nominated for the Lexis Nexis Top International & Foreign Law Blog of the Year.

To vote for the ICLB blog, you'll need to be a registered community member and be logged in. If you haven't registered previously, follow the link below to create a new registration or use your sign in credentials from your favorite social media site. Add a comment in the box at the bottom of the page to vote for the ICLB.

http://www.lexisnexis.com/community/international-foreignlaw/content/instructionsforregisteringthroughasocialmediasite.aspx

David Young appointed counsel in case at Lebanon Tribunal

On the 26th October 2011 the Head of the Defence Office at the Special Tribunal for the Lebanon appointed David Young, as lead Counsel to defend Assad Hassan SABRA, one of the four accused in the Rafik Hariri assassination case.
Sabra is charged with Conspiracy aimed at committing a Terrorist Act, and with other charges relating to the alleged Intentional Homicide of Rafik Hariri and 21 other persons. There is a warrant issued for his arrest and submissions are planned by the STL for a trial being held against him in absentia.
David Young will be speaking on the STL at 9 Bedford Row’s London Conference on 19th November 2011.

The Death of Gaddafi

A guest blog by Jake Taylor

Colonel Muammar Gaddafi, who was killed in Sirte yesterday by rebel Libyan forces, will now join Saddam Hussein, Ben Ali of Tunisia and Egypt's Hosni Mubarak as another fallen dictator of the 1960s generation. A number remain, including Syria’s Bashar al-Assad in Syria.

The death of the Libyan autocrat signals an end to the debate over where he should be tried. In June, judges of the International Criminal Court (ICC) issued arrest warrants against Gaddafi for crimes against humanity committed by troops under his orders. Gaddafi’s is said to have used “lethal force” to quell the uprising against his regime in February. However, Libya's justice minister has repeatedly insisted Gaddafi – were he to be captured alive – would be tried in Libya under local law.

Some indication of where Gaddafi would have faced justice, were he captured alive, may be gleaned from the fate of the dictator's most prominent son, Seif al-Islam. In light of Gaddafi’s death, the world police body Interpol and the ICC urged Seif al-Islam, who was also indicted by the ICC, to give himself up and “face justice”. In a statement issued yesterday, the two institutions “urged…Seif to give himself up and for the national authorities of the country where he is hiding to guarantee and facilitate his safe transfer to The Netherlands to face justice.” What happens to Seif al-Islam may well provide some indication of whether national or international justice would have prevailed against Gaddafi.

For more information:
http://www.khaleejtimes.com/DisplayArticle09.asp?xfile=data/international/2011/October/international_October840.xml§ion=international
http://www.bbc.co.uk/news/world-africa-15394139
http://www.guardian.co.uk/world/2011/oct/20/muammar-gaddafi-death-averts-legal-headache?newsfeed=true

The Bangladesh ICT - Public Statement by the Defence

The International Crimes Tribunal Bangladesh: International Standards and Fundamental Freedoms

Public Statement by the Defence Team

On 3 October 2011 Allama Delwar Hossain Sayedee became the first person ever to be formally charged for crimes under the International Crimes Tribunal Act 1973 as amended 2009 after it was first established nearly forty years ago. In the time passed, the Act has been distinctly removed from its original intention to try members of the Pakistani Army. Sayedee (and indeed the remaining accused) is a Bangladeshi civilian, just as he was in 1971 during the Liberation War.

The charges against Sayedee are alleged to have been committed in the area now known as Pirojpur District and are based upon Sayedee’s alleged leadership of Razakar Bahini. There are in total twenty counts brought against Sayedee; three of which are alleged acts of genocide and the remaining seventeen counts are alleged crimes against humanity ranging between murder, persecution, torture, rape and abduction.

Despite a number of challenges made by the Defence with regards the lack of definitions or elements of crimes within the Act itself, the Tribunal proceeded to frame charges against Sayedee. It held that the crimes enumerated within the Act were part of customary international law and therefore are clear and unambiguous. Notably however, the Tribunal failed to explicitly state the exact position of customary international law in 1971 on:
a) Definition and context of crimes against humanity and within that the prescribed elements namely: murder, extermination, enslavement, deportation, imprisonment, abduction, confinement, torture, rape or other inhumane acts committed against any civilian population or persecutions on political, racial, ethnic or religious grounds;
b) The requisite knowledge to convict for crimes against humanity;
c) The elements of the different modes of liability charged under section 3 (g) and (h) of the Act.

The definition of crimes against humanity is a three-fold problem when considering the fact that the Nuremberg Charter, on which the Act is based, was drafted in 1945, a clear 28 years before the International Crimes Act 1973 was drafted and a further 66 years before the Act is being used to try individuals. Furthermore, between the Nuremberg trials in 1945 and the establishment of the International Criminal Tribunal for the former Yugoslavia in 1993, there were no examples of a legal institution trying crimes against humanity. As a result there has been extensive debate as to what the exact definition of crimes against humanity was in customary international law in 1971.

In order to deal with this difficulty the Extraordinary Chambers in the Courts of Cambodia (ECCC), which is also a current tribunal with jurisdiction over crimes committed in 1975-1979, has taken a declaratory approach and explicitly laid out what it perceives to be the position of customary international law in the 1970’s and provided for specific elements of crimes in defining crimes against humanity. Article 5 of the Law on ECCC defines crimes against humanity as: “any acts committed as part of a widespread or systematic attack directed against any civilian population, on national, political, ethnical, racial or religious grounds, such as: murder; extermination; enslavement; deportation; imprisonment; torture; rape; persecutions on political, racial, and religious grounds; and other inhumane acts”. In contrast to this the ICTBD has only managed to include the provision that it “may take into account normative developments should it feel so required in the interests of justice”. This has a significant impact on the preparation of the defence case and the legal framework of the upcoming trial and subsequent judgment. It would effectively involve moving the goalposts mid-proceedings.

There are further problems with the indictment as it stands. This includes the failure to separate counts with regards to a single event. For example, one count contains allegations of abduction, confinement and rape as a single charge. In other counts, there is often no specific prescribed offence under crimes against humanity so that a general allegation of crime against humanity is put forward. Indeed lack of specificity is a running theme within the indictment. Out of 20 counts, 9 have no specific date provided for. Indeed four of the counts do not even attempt to provide a limited range of dates, only stating that the alleged offence occurred “during the time of Liberation War in 1971”.

Following the charges being read out, Sayedee was requested by the Tribunal to enter an immediate plea without being permitted to take legal advice before doing so. Sayedee pleaded not guilty to all twenty counts and took the opportunity to declare his innocence. He clarified that he had no involvement with the Razakar, Al-Badr, Al- Shams, or the Pakistani Army and that such accusations were fabricated.

The trial of Sayedee is to commence on 30 October 2011 and will be the first trial heard before the ICTBD. Despite the year-long investigation into the case against Sayedee, the defence are now expected to complete the arduous task of conducting its own investigation and prepare for its entire case in support of Sayedee within a time frame of three weeks. The defence are to disclose its entire case by 30 October 2011, notwithstanding the fact that the Prosecution have yet to open their case nor the fact that the alleged activities were committed over forty years ago.

One of the main concerns raised recently is that a number of personnel closely associated with the Tribunal played a role in the Peoples’ Inquiry Commission of the early 1990s. This Commission conducted inquiries into crimes committed during the 1971 War of Liberation and identified those deemed responsible. The issue is that irrespective of the role played in the Commission, it would now be quite inappropriate to hold judicial office in any proceedings over the same subject matter.

The Bangladesh State Minister for Law, Qamrul Islam, recently declared: “The ICT trial process will be more neutral and transparent than that of other war crimes trials so far held elsewhere in the world. It'll be a exemplary for the world community.” This indeed is quite a challenging statement. Previously, the Government line was that trials would be fairer than Nuremburg and Tokyo as there would be the right of appeal. This new bold line adopted by the Government indicates that trials at the Bangladesh ICT will outshine the International Criminal Court, the international ad hoc tribunals and the various hybrid tribunals around the world. One hopes that the Tribunal can now maintain the very high standards set by Minister Qamrul Islam and that the legal framework and procedures, including repealing the controversial First Constitutional Amendment, will now be amended in line with maintaining fair trials and ensuring the rights of the accused are upheld in accordance with international standards.

Despite the very bold statements made by members of the Government that trials will be conducted under the highest standards of fairness and transparency, the defence is forced to operate in an atmosphere of hostility and intimidation. The lead counsel for the detained Jamaat-e-Islami leaders, Barrister Abdur Razzaq, a member of the Bar of England and Wales, was recently implicated in the 19 September 2011 political demonstrations. The police reports implicated him as having participated in the violent demonstrations on the streets of Dhaka. This is notwithstanding the fact that he was in my presence in Europe attending high-level meetings with representatives of various United Nations and European Union institutions. Should Barrister Razzaq be arrested upon his return to Bangladesh this would send a clear message to the international community that a leading member of the legal profession has been arbitrarily detained for allegations that have no substance and is merely a politically motivated attempt to interfere with the war crimes trials. This allegation is further substantiated by the fact that a key defence witness, ironically a former member of the Liberation Forces, has recently been arrested, a journalist working for an opposition news station conducting investigations on behalf of the defence and a further five defence witnesses now also face criminal allegations. This would seem to serve no purpose other than as a direct warning to anyone intending to give evidence on behalf Sayedee or any person brought before the Tribunal.

This week the ICT Judges and Registrar travelled to The Hague to meet professionals and observe the practices of the International Criminal Court, the Special Tribunal for Lebanon and the International Criminal Tribunal for the Former Yugoslavia. It is noted with concern that although the delegation met with representatives from the Office of the Prosecutor and Chambers (Judges section of the Tribunals) they failed to request any meetings with representatives from the Defence Office at the International Criminal Court. Although it has been confirmed that this was not judicial training, something the defence have consistently called for, having the opportunity to observe proceedings before such institutions will undoubtedly cause the judges to question their own rules. We certainly hope that any future educational visits also include judicial and prosecutorial training.

A number of statements have emerged this week purporting to show that the US Secretary of State fully supports the Tribunal and praises the war crimes process in Bangladesh. Whilst not wishing to add to the comments attempting to prejudge the position of the US Government, what is clear is that Secretary Clinton has expressed support for the establishment of the Tribunal and the Bangladesh Government’s intention to bring an end to a culture of impunity. If this is the position of the US Government, it is merely reflecting the positive obligations imposed under international law on Bangladesh to bring justice to the victims of crimes that have no statute of limitation. However, what Secretary Clinton has not commented on is whether the US Government is in agreement with the manner in which trials are currently proceeding and whether the laws and procedures meet international standards. One issue that was addressed by Secretary Clinton; however, was the question of freedom of the press. Secretary Clinton quite rightly said that the US Government “...[urges] the Government of Bangladesh to ensure that media outlets are able to exercise freedom of the press and that NGOs have the opportunity to be a vibrant contributor to the future of Bangladesh.”

Secretary Clinton’s comments have particular resonance when one considers that any opposition comment is stamped out and the author of such comment threatened with charges of contempt or sedition. By way of substantiation, the British journalist David Bergman, recently wrote an article in the New Age, a leading Bangladesh daily, entitled “A Crucial Period For The International Crimes Tribunal”. On 3 October 2011, the Tribunal issued a show cause notice against David Bergman, the New Age editor and the publishing company, for contempt. Bergman, and his employers, have been summonsed to attend the Tribunal on 23 October 2011 and show cause for the article. This is a clear attempt to influence independent media reporting and to control any criticism of the Tribunal.

The numerous statements issued recently by members of the Bangladesh Government claiming international approval are misleading. The international community naturally applauds the efforts of the Government, but not a single statement emanating from outside of Bangladesh has been anything but critical of the law and practice of the Tribunal. It is worthy of note to remark that US Ambassador Stephen Rapp, Lord Avebury, International Bar Association, Human Rights Watch, International Center for Transitional Justice and Amnesty International have all called for the legal framework to be amended in accordance with international standards.

There have also been numerous criticisms of my comments on the Tribunal. I have been accused of breaching my professional obligations and of acting in an impartial and biased manner. To this I have responded that the duty of a barrister is to promote and protect fearlessly and by all proper and lawful means the client's best interests and do so without regard to his own interests or to any consequences to himself or to any other person. I have strived, and I will continue to strive, for changes in the law that ensures my client a fair trial and represents full compliance with Bangladesh’s international obligations. To do otherwise would be in breach of my professional duties to my clients. As to the most recent criticism that I have acted with bias towards the Tribunal I would only say that there is nothing in my professional obligations that require me to act impartially. The maker of such comments has unfortunately confused the role of the judges and the role of defence counsel. The judges, as the adjudicators of law and fact, must apply themselves impartially and must act with total independence. My duty is to present my client’s case in his best interests. Of course there is a duty not to mislead the court before whom one appears. However, that does not mean that I have to act impartially and in fact one might think that it is implicit in the role of defence counsel to act partially.

On the question of international or fundamental standards there remains much debate. The Bangladesh Government has repeatedly stated that the trials will meet the highest international standards. As noted earlier, Minister Qamrul Islam has set the bar extremely high. The Minister for Law, Justice and Parliamentary Affairs, Shafique Ahmed, has recently called on the international community to ensure that international standards are met. However, the same criticisms raised by the international community have still not been addressed. The Tribunal's judges have at times stated that the Tribunal is a domestic court and not required to comply with international standards (see http://www.asiacalling.org/en/news/bangladesh/2265-bangladesh-war-crimes-first- charges-filed). However, if the Tribunal is indeed a domestic judicial organ then there is no reason why domestic procedural and evidentiary rules should not apply. There is no justification for the removal of constitutional and fundamental rights. There is no justification for removing the right to bring interlocutory appeals to the High Court.

The mantra adopted by various organs of the Bangladesh Government that appeal against conviction and sentence provides a higher standard than was available before the International Military Tribunals of Nuremberg and Tokyo is simply unacceptable. Interestingly, US President John F. Kennedy said of the Nuremberg trials that “[they] were a reversion to the ancient practice of the savage extermination of a defeated enemy and particularly of its leaders. The precedent set by these trials will continue to plague their authors.” The provision of appealing against conviction and sentence will provide little remedy if the same rights that have been systematically removed are not restored in the appellate proceedings. Rather worryingly in this regard, a Justice of the High Court Division of the Supreme Court, noted in relation to a petition brought against the First Constitutional Amendment that a reasonable distinction could be drawn between the rights afforded to “ordinary citizens and other citizens accused of war crimes.”

The Tribunal Registrar recently told British Journalist David Bergman:
“You know the tribunal has been functioning according to Act of 1973 and the rules framed by the tribunal under the powers conferred by the act which are basically quite compatible with the universally recognized norms and principles, attention to due process of law and highest degree of fairness and I do believe that for that despite concerns raised by many international organizations there should be no disagreement that equal opportunity of both the sides has to be afforded and in ensuring it the tribunal is quite conscious..”
The criticisms aimed at the Tribunal include the following:
1. Those who fought with the Liberation forces, irrespective of their conduct, are immune prosecution;
2. Those charged with crimes under the jurisdiction of the Tribunal are stripped of constitutional rights and fundamental freedoms;
3. Suspect interrogations are conducted without prior disclosure and in the absence of counsel;
4. The crimes under the 1973 Act lack clear definitions and elements of crimes;
5. There is no right to challenge any decision of the Tribunal other than having the same judges review their own decisions;
6. There is no right to challenge the jurisdiction of the Tribunal, the 1973 Act or the appointment of any individual judge;
7. An accused is required to enter a plea immediately upon being arraigned and without the prior assistance of counsel;
8. The defence is afforded 3 weeks to prepare for trial from charge;
9. The defence is required to disclose its entire case before the Prosecution has even opened its case;
10. The defence are denied privileged communication with counsel;
11. The domestic rules of evidence and procedure are explicitly excluded;
12. There is no right to appeal other than against conviction and sentence;
13. Rules of international law have been held not to apply;
14. These are all capital cases.

It is difficult to see what “universally recognized norms and principles” are being referred to here.

Toby M. Cadman

London, 16 October 2011

John Cammegh to Deliver Address to St Anthony’s College Oxford on Bangladesh ICT

On Tuesday 18 October, John Cammegh of 9BRi is to appear at St Anthony's College, Oxford, to deliver an address on the Bangladesh War Crimes Tribunal (the “Tribunal”) and international law in South Asia.

The trials are going ahead despite grave international concerns relating to the rights of the accused, the lack of procedural safeguards and the highly politicised nature of the proceedings. John currently represents a number of Bangladeshi citizens that stand accused before the Tribunal.

John’s address will be followed by a panel discussion with Dr. Faisal Devji, Dr. Sarmila Bose and Mr. Anup Surendranath

This event is open to the public. For further information please contact John at jcammeghATgmailDOTcom or on 07713414100 

9BRi Annual Conference on International Criminal Law

The 9 Bedford Row International Annual Conference has been rescheduled for 19 November 2011.

The conference will provide an insight into the case management of international criminal cases and the diversity of opportunities in this fascinating area of the law.

To attend this event advance registration is required with Julian Bradley at 9 Bedford Row: julian.bradley@9bedfordrow.co.uk or call 0207 489 2727.

International Crisis Group - Policy Briefing or Legal interference?

The International Crisis Group working out of Nairobi and Brussels has produced a report on the Kenya proceedings just before the ICC Pre-Trial Chamber II is due to return its decision on the confirmation of charges hearing. I can not let it pass without criticism but read it for yourselves.

‘Kenya: Impact of the ICC Proceedings,’ Africa Briefing No. 84, International Crisis Group, 9 January 2012′: http://www.crisisgroup.org/~/media/Files/africa/horn-of-africa/kenya/B084%20Kenya%20-%20Impact%20of%20the%20ICC%20Proceedings.pdf

This report like many others is disseminated by one of the core supporters of the ICC, the Coalition for the ICC, which distances itself from the documents it distributes, but nevertheless fulfills its task. The ICG worthily declares it is “Working to Prevent Conflict Worldwide” on its banner and its stated aims also declares it seeks to influence governments in its research and opinions. It has offices around the world and an experienced and eminent Board. Plainly a lot of money comes from somewhere to fund this kind of operation, and probably from taxpayers like me around the world. The authors of this report are anonymous, so having read what I have read, I will send a copy of this complaint about the content to Louise Arbour and to the Coalition for the ICC.

Why am I bothering to tell you this? Well, I spotted some dangerous text in this document that made me scrutinize its content further to see whether it is justice and fairness this organization seeks or it has other ends. Not only that, there is a clear misrepresentation of the role of the Defence in the ICC proceedings and I am not prepared to take such defamation lightly.

But first things first, it is confidently stated:

“If the court, as is expected, confirms charges for both cases on the same day, this could be a crucial step to help defuse a rise in ethnic tensions. There are real fears that if charges are dropped for suspects of one ethnicity and confirmed for those of another, ethnic tensions could increase sharply, regardless of the legal merits. The ICC’s decisions will continue to play a pivotal role in Kenya’s political process, especially in the crucial 2012 election.”
I am not sure why there should be expectation of the confirmation of charges, having taken part in the proceedings and observed reaction to the content of the respective cases of the parties at the time, but there is a clear message in this piece that the failure of the charges will be damaging to Kenyan society. Later on in the report this theme is repeated:

“Although this scenario would demonstrate the ICC’s impartiality and independence, it would be viewed as a set- back for efforts to combat impunity and deter political violence in Kenya.”

Therefore, this prosecution is seen as an end in itself to affect the politics of Kenya. I have never believed that prosecutions should take place on such a basis, but that if they do so, Judges have the job to ensure that such wrongful proceedings do not continue and that justice is lawfully done. It might be news to the International Crisis Group, but experience has shown that miscarriages of justice actually fan the fires of conflict. Ask any human rights lawyer who trained in the 1970’s. It is a pity that the authors of the report did not consider the Defence evidence that demonstrated how the matter of the allegations surrounding the electoral violence arose and how the international community walked into a carefully prepared trap. But I am not sure such information suits their purposes. Particularly, as they have another prepared view of Defence counsel expressed thus:

“While the ICC is still popular, the Kenyan public’s approval of its role has been declining, due to deft media manipulation by the suspects and their lawyers. In order to counter misrepresentations of the court’s decisions, the court and its supporters, including civil society and other friends, should intensify public information and outreach efforts to explain its mandate, workings and process.”

Without any factual support this rather outrageous allegation has been made against Defence counsel. I demand you at the ICG produce your evidence to support this assertion. I will even publish it on the ICLB blog for you. It is outrageous because we have hardly spoken to or dealt with the media as it is well known by all journalists is my practice. In fact Louis Moreno OCampo as Chief Prosecutor for the ICC has regularly conducted media exercises before, during and after these proceedings that have been criticized as exercises in manipulation to the PTC by the Defence! These complaints were not regarded as trivial by the Judges but the Court said it could do nothing but repeat its request for such practices not to occur. In fact the expectations about the strength of the Prosecution case, which turned out to be otherwise are referred to in the ICG report. Any comment there International Crisis Group or does that not suit your agenda? Does that not fan the fires of conflict in which you are so worthily concerned?

The report goes further to allege:

“During the hearings on the charges, the suspect’s lawyers, particularly Kenyatta’s team, argued that the prosecution built its cases on civil society reports and newspaper clippings that do not constitute legal proof.(91) Feeling vindicated, the former suspects would undoubtedly repeat on the campaign trail their claims of having been targeted by their political enemies, which would not be promising for peaceful elections.”

Well, this may be news to you ICG, but if you just base your opinions on recycled reports and not evidence, some day you will come a cropper! You see it is very easy to point fingers and allege. But if you run a justice system you need more, because if you make allegations without evidence, you tend to find that inaccuracy creeps in and what is more it becomes easy to make unfounded allegations. The history of criminal justice has taught us to tread carefully and look for the evidence, otherwise you fill prisons with innocent people. Then you really do have a conflict on your hands….By the way the footnote (91) does not support the proposition here either! Neither did the defence ever contest these hearings on the basis that the Prosecution did not have a “watertight case” as you have stated. Merely that there were not “substantial grounds to believe” which is the legal test to be applied at this stage.

The International Crisis Group seems much obsessed with the outcome of the elections. I wonder why? Who has a stake in this to be so obsessed? Thoughts anyone….

Toby Cadman presents a statement on behalf of the Syrian Emergency Task Force and Syrian Revolution

Toby Cadman presents a statement on behalf of the Syrian Emergency Task Force and Syrian Revolution General Commission to the world's media in Washington, D.C. He calls upon the international community, in particular UN Security Council, to take the necessary measures required to bring an immediate end to hostilities in Syria. 

Bangladesh War Crimes Tribunal first day of charging process

The first day of the process known as framing of the charges at the Bangladesh War Crimes tribunal has ended in the Sayedee case. One of the Judges believes that the ICTY has no requirement for the prosecution to prove a widespread or systematic attack as an element of the offence of crimes against humanity. Has the Judge read the Tadic jurisdiction argument and any of the judgments in all the trials held since?
For a full account of the first days hearing see David Bergman's blog http://bangladeshwarcrimes.blogspot.com/2011/09/4-sep-2011-charge-framing-petition.html?m=1