Alice in Wonderland

Bangladesh

The Judge, The Professor, The Prosecutor and the Minister

Note: the contents of this article draw on open source material that is in the public domain.

Iact for the defence and for that I offer no apology. My clients are members of an Islamist Political party and have conservative religious and political views and for that they offer no apology.

My clients are accused (many of whom now convicted, one of whom was executed and two more have died in custody from old age and ill-health) of having collaborated with the Pakistan Army during the 1971 War of Liberation. The Pakistan Army is largely believed to have been responsible for a Genocide that resulted in casualties of up to 3 million, several hundred thousand women raped and more than 10 million persons forced to flee to neighbouring India. The actual numbers of victims remain a contentious issue due to the fact that there are no independent records on the dead. However, the numbers are not the focus of this article as it matters very little as to whether 3,000, 300,000 or 3,000,000 died. There can be no dispute that crimes were committed on a truly horrific scale and there has been a culture of impunity that has pervaded Bangladesh politics for more than 40 years.

My clients have fiercely protested their innocence as is their right. This is not a challenge to the legitimacy of independence or sovereignty nor is it a challenge that crimes were not committed – they were.

It is acknowledged that the political party to which my clients are all members, Bangladesh Jamaat-e-Islami, sided politically with West Pakistan for a unified Islamic nation. They lost that campaign, but have consistently denied any involvement in war crimes, crimes against humanity and genocide. They have never denied that such crimes were committed – only that they, as a political party, did not engage in such conduct. They have also consistently stated that if any person committed such crimes, irrespective of whether they are members of Jamaat-e-Islami, they should be tried by an independent and impartial tribunal of law.

There can no real debate that in 1971 East Pakistan was plunged into one of the most bloody and brutal conflicts in modern history. There will continue to be relentless debate as to the number of casualties, that is partly because there has never been a proper inquiry into the conflict and there is a real absence of reliable records, but that is missing the point. Whether one accepts the lower estimate of 300,000 or the higher estimate of 3 million this does not detract from the need to establish to a process aimed at accountability.

First Attempt

In 1973 a unique piece of legislation was adopted, the International Crimes (Tribunals) Act 1973. This was the first attempt at establishing a war crimes tribunal post-Nuremberg. The legal framework establishing the International Crimes Tribunal in Bangladesh was enacted for the specific purpose of putting on trial military personnel, namely 195 Pakistani Prisoners of War, at that time in the custody of the Government of India, identified as those persons bearing the greatest responsibility for the atrocities committed during the nine-month war. This was a brave attempt to put those on trial, before a military tribunal in the newly founded state, despite the numerous and serious flaws in the legal framework.

The legislation was drafted following recommendations made by the International Commission of Jurists – although relatively few (if any) of the recommendations were followed. Of particular note is the ICJ’s recommendation that the Tribunal be established with international judges, prosecutors and defence counsel. It may be recalled that Sheikh Mujibur Rahman endorsed this position in his first interview following liberation, calling for an international inquiry with the support of the United Nations to bring the perpetrators to justice. It is deeply regrettable that this did not happen.

One of the drafters of the ICJ report, Professor Otto Trifterer, was instructed by our defence team to prepare an expert report on the legal framework. Professor Trifterer, an expert in international criminal law from the University of Salzburg, concluded that the legal framework fell far below recognised international standards. Professor Trifterer was joined by Professor William Schabas who reached the same conclusions. Despite the submission of the two expert reports the Tribunal has never referred to their evidence and never sought to invite any international experts as amicus curiae despite the obvious difficulties the judges, prosecutors and lawyers have experienced in grappling with international law. As will become apparent, the Tribunal and the Government took great steps to ensure that no international experts appeared before the Tribunal.

To highlight the lack of real understanding, in one particular legal discussion, one of the Tribunal Judges enquired of the Prosecutor as to why he had charged genocide in one count and crimes against humanity in another for conduct that was broadly the same. The Prosecutor responded that if it was a single killing it was a crime against humanity and if more than one it amounted to Genocide. Now, this may be an over-simplification of the legal argument presented, but it demonstrates the distinct lack of understanding of basic legal concepts under international law. This incident is one of many and clearly demonstrates the absolute need for international involvement in the understanding of basic themes of international criminal law. A report into the workings of the Tribunal by Geoffrey Robertson QC of Doughty Street Chambers, to be published in January 2015, highlights this very point. Mr. Robertson QC calls for the UN to set up an international tribunal as the judges have been swayed by “nationalistic fervour” and have failed to pay “proper attention to legal principles”.

The 1973 Military Tribunal put on trial the 195 POWs, but following the trial repatriated them back to Pakistan as part of a peace deal. Pakistan had given an undertaking to put on trial those persons identified as bearing individual criminal responsibility for war crimes, crimes against humanity and genocide. Despite such an undertaking, aimed at lasting reconciliation, no person has ever been charged by a Court in Pakistan.

It was recognised by the new leader, Sheikh Mujibur Rahman, that the Bengali people were a forgiving nation and that in the interest of peace and reconciliation they would forgive and forget. Considering that Sheikh Mujibur Rahman had stated at the end of the War of Liberation that 3 million people had been killed, it was difficult to imagine how the country could forgive and forget. In fact time has shown they could not. In 1975 Sheikh Mujibur Rahman was assassinated. The power struggle has been thrown between the warring dynasties of Sheikh Mujibur Rahman and Ziaur ‘Zia’ Rahman and intermittent military rule and the issue of war crimes has been continually simmering under the surface.

Second Attempt

The current Government of Bangladesh, led by Prime Minister Sheikh Hasina Wajed pledged, in its 2008 election manifesto, to prosecute war criminals (whilst also pledging to restore, “the dignity and status of the freedom fighters…the greatest sons of the nation).”[1]At the first session of the Ninth Parliament in 2009, a resolution was adopted to establish a civilian court to prosecute crimes committed during the Liberation War 1971. This led to the current amendments to the International Crimes (Tribunal) Act 1971 as amended 2009 (hereinafter “ICTA”). The Tribunal was then established on 25 March 2010.

The Rules of Procedure for the Tribunal were enacted on 15 July 2010 but deemed to have come into force on 25 March 2010. They were amended following a number of concerns from the international community, [2]but it is essential to note that the international community still does not consider the amendments to be sufficient to guarantee fair trial. [3]Geoffrey Robertson QC in particular has stated that they fall far below international standards.

The Tribunal remains a tribunal established by a national act of parliament that has jurisdiction over crimes against humanity, crimes against peace, genocide, war crimes, violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949, any other crimes under international law, attempt, abetment or conspiracy to commit any such crimes; complicity in or failure to prevent commission of any such crimes. Following the Tribunal’s establishment, eight men were arrested during 2010 and 2011. At least six of the current defendants were detained for a prolonged period without being charged with a crime under the 1973 Act [4]

A second International Crimes Tribunal (hereinafter “ICT-2”) was announced on 22 March 2012 and started work on 25 March. It was reported on the 9 April 2012 that the Government of Bangladesh had approved a draft International Crimes (Tribunals) Act 2012, enabling the transfer of cases from one Tribunal to another [5] As a result 4 cases were transferred from the original Tribunal to the newly constituted ICT-2. The ICT-2 has its own Rules of Procedure distinct from the Rules of this Tribunal (ICT-1).

Considering the largely unsuccessful first attempt and the deeply regrettable fact that any mechanism of accountability lay effectively dormant for the next 39 years, it was essential that the Tribunal met the highest national and international standards and met the nation’s demand for justice.

The Tribunal was established with the stated aim of bringing to justice those who committed crimes of an international character during the nine-month armed conflict in 1971. It is the duty of the Tribunal to determine criminal responsibility for specific acts based on due process of law. The defendants cannot be convicted for acts that are so unclear that they are unable to know what they are to challenge. Neither can they be convicted under any doctrine of collective responsibility on the basis of the political position that may have taken by the Bangladesh Jamaat-e-Islami or its support network of student activists. The defendants also cannot be convicted for being on the losing side of a conflict – that is victor’s justice. The only way the defendants can be convicted is if specific crimes can be attributed to their conduct beyond a reasonable doubt. This is the standard of proof in the law applicable to this Tribunal and that there is simply no way to apply this standard to the case presented against the defendants in a manner that justifies their conviction.

The Government of Bangladesh has consistently maintained that the trials are being maintained according to the highest international standards and that politics play no part. The defence, of which I have played a leading part on the international level, has consistently maintained that the trials have been influenced by politics from the very beginning. This is a position that a large part of the international legal community has also endorsed. Whatever position one takes as to the nature of the conflict and the level of victimisation in 1971, one cannot support a process that is devoid of legitimacy and political at its core.

International Support

The International Crimes Tribunal in Bangladesh is an entirely domestic institution that purports to operate under national law. It has taken great steps to ensure that it does not apply the various international treaties to which Bangladesh is a State Party. The ‘international’ in its title does not refer to its status, but to the crimes under its jurisdiction, namely ‘international crimes’ such as war crimes, crimes against humanity and genocide. Interestingly, it has not charged any of the defendants with war crimes – the argument being that would require a determination of the international character of the conflict, something which the Tribunal and to some extent, the Government, has painstakingly steered clear.

There have been various attempts by the international community to offer technical international assistance to the Tribunal, but the Awami League Government has rebuffed all efforts. In April 2009 it was widely reported that the United Nations, through its Development Programme (UNDP) offered to provide technical assistance by way of international legal experts. It has been suggested by some commentators that the UNDP withdrew all offers of technical assistance after pressure from the Governments of Pakistan and France. This theory is documented in a series of leaked cables. Neither France nor Pakistan have commented publicly so it is little more than rumour – although it is quite clear that the Government of Pakistan has the most to lose if the trial process was considered credible and legitimate.

There were further offers of technical assistance by the UN Office of the High Commissioner for Human Rights, International Center for Transitional Justice, International Bar Association War Crimes Committee and the U.S. State Department Office of Global Criminal Justice. All efforts were rebuffed. It is not clear whether the Government of Bangladesh declined offers of assistance or whether such offers were prevented by other more powerful nations. Whatever the reasons it is clear that the Tribunal was forced to operate without adequate training, sufficient resources or funding to operate as a truly independent and impartial judicial institution.

In 2003, the United Nations Security Council adopted Resolution 1503 by which a completion strategy for the International Criminal Tribunal for the Former Yugoslavia was devised including the establishment of the Bosnian War Crimes Chamber, a national war crimes court with international assistance and funding from the United States, European Union, United Kingdom and a number of European States. This process took almost two years before the first war crimes case was heard. The two-year development plan involved the construction of adequate premises (including new detention facilities), redrafting new laws, training of judges, prosecutors and lawyers and a series of study visits to national and international tribunals in London, The Hague and Sierra Leone. A number of international experts were engaged to work alongside national experts. The Bosnian model is considered by many to be one of the most successful mechanisms for delivering justice on the national level and complementing international jurisdiction.

I first visited Dhaka in October 2010 with Steven Kay QC, the head of 9 Bedford Row International and the Chair of the International Bar Association War Crimes Committee, on the invitation of the Bangladesh Supreme Court Bar Association.

Arriving in Dhaka, Steven Kay QC and I spoke at a conference organized by members of the defence on the need to maintain international standards and raised concerns about the legal framework under the 1973 legislation and the First Constitutional Amendment that removed a number of fundamental rights and procedural safeguards for ensuring a fair trial.

I had the opportunity of visiting the Tribunal premises and meeting the registrar (now a judge at the Second Tribunal) and the three judges (only one of whom now remains). Mr. Kay and I were struck by a number of matters. First, the court building was wholly unsuitable for holding a war crimes trial in which there would almost certainly be a need for greater security for witnesses and members of the public. There was a complete absence of the usual technological advances that one would expect for such trials, although this is understandable considering few, if any, Bangladesh courts would be set up with the same resources as the international tribunals. Further, the judges, by their own admission had none of the basic texts that one would expect to find in the Judges’ Chambers of a war crimes court. There was no library of international jurisprudence. The judges had no legal or technical support. There were no judicial assistants, no researchers. They had no experience of dealing with such cases and had received no prior training. I was stunned by their unpreparedness to commence the trials. Although I did not have the opportunity to meet the Prosecutors and Investigators on that first visit I assumed their shortcomings were on a similar footing. It was clear that a huge, and wholly unrealistic, amount of pressure was being placed on them to deliver what the Awami League Government demanded. Failure would not be accepted and requesting assistance was synonymous with failure it seemed.

It was indeed a concern shared by many that the judges, prosecutors and investigators would not have sufficient legal and logistical support. The defence team had a group of experienced international lawyers from 9 Bedford Row International of which I was a part. Our team was headed by Steven Kay QC, a leader in the field of international criminal law. Our trial team was coordinated by John Cammegh, an experienced trial lawyer who had spent several years at the Special Court in Sierra Leone. I was appointed to coordinate our legal and lobbying strategy and we had a team of highly capable juniors with experience of the international tribunals. It was only right that the judges and prosecutors had the same level of support. Fortunately, they did. Although it has never been properly disclosed a team of lawyers, investigators and international lobbyists have been actively supporting the Judges, Prosecutors and Government throughout the trials.

The support group, known as the International Crimes Strategy Forum (ICSF), promotes itself on being “…a coalition of activists and organisations committed to the cause of bringing to justice the perpetrators of war crimes during the Bangladesh Liberation War in 1971.” Interestingly, it lists as amongst its objectives “providing technical and research assistance to the various components and stakeholders of the International Crimes Tribunal in Bangladesh” and “Lobbying with the formal official actors and working with the media, both in Bangladesh and abroad”. This is therefore a coalition of like-minded individuals that have actively assisted the Bangladesh authorities; governmental, judicial and prosecutorial, in the construction and presentation of the cases against the accused in order to deliver on the Awami League Government’s promise of conviction and execution – at all costs.

There is of course nothing wrong with political activism and pursuing accountability. It is only to be expected that those affected by the conflict, those that have lost family members, want to ensure that nothing is left to chance. However, there is a fine between political activism and influencing the outcome of the proceedings. It is here where the ICSF have arguably crossed the line.

In December 2012 the extent of the ICSF involvement was made public when the Economist and the Wall Street Journal published a series of disclosures detailing discussions between the then Chairman of the Tribunal, Justice Nizamul Haq and Dr. Ahmed Ziauddin, a law professor of the Bangladeshi origin based in Brussels. The disclosures demonstrated that whilst Justice Haq was the presiding judge it was Dr. Ziauddin who dictated the proceedings.

When the Honourable Judge was confronted with the allegations by The Economist he at first denied the communications had ever taken place. Once it was clear that a mere denial would not suffice, he attempted to explain that these were criminal proceedings dealing with complex areas of law and Dr. Ziauddin was providing expert advice. However, if the Tribunal were so much in need of expert advice then why would it spurn the offers of assistance from a host of international organisations. If the advisory services that Dr. Ziauddin provided were so essential to the proceedings, why was he not sitting in court with the judges, and why would the Honourable Judge issue a flat denial. This created the impression, rightly or wrongly, that there was something to hide.

What is clear from the disclosures is that the discussions focus on a meticulously planned strategy. The cases, the manner in which they were constructed and the planned sequences of events were all carefully planned. In one recording the two colleagues discuss how the State Minister for Law, Quamrul Islam, had visited the Honourable Judge requesting that the Tribunal issues a verdict quickly. The State Minister discussed the case of Professor Ghulam Azam and the Honourable Judge quoted the State Minister as saying that “there are going to be 10 witnesses, with regards to Golam Azam. I will discuss with you about both the tribunals sitting in one room. You will put Golam Azam first and then they will put forward, they wait. I laughed saying ok you can try”. Dr. Ziauddin then noted that he had passed a message to the Minister. The nature of the discussion may appear relatively innocent, but what it shows is that both the judge and the law professor were holding planning meetings with members of the Government.

As one trawls through the voluminous transcripts discussions with government ministers continue. The two friends show their glee at the appointment of a new Home Minister and sets out what the Information Minister, Hasanul Haq Inu, can do for promoting the Tribunal. Dr. Ziauddin confirms that he has been communicating with him on Tribunal issues. It is becoming quite clear here that Dr. Ziauddin’s role is far greater than an advisor to the Honourable Judge on issues of international law. He is discussing trial strategy and government policy.

One figure that emerges in the discussions is that of the prosecutor Zead Al Malum. The Honourable Judge and the Law Professor frequently refer to their respective discussions with ‘Malum Bhai’. I crossed swords with ‘Malum Bhai’ at the European Parliament in January 2012 during a debate on the Tribunal when he was part of a delegation from Bangladesh that included a prosecution witness Shahriar Kabir, a lawyer and political activist Tureen Afroz (now a Prosecutor at the Tribunal) and Dr. Ahmed Ziauddin. Malum presented a paper on behalf of the Prosecution attesting to the very highest standards of due process. The most interesting aspect of Prosecutor Malum’s presentation was that he openly stated that he was a ‘freedom fighter’. Following his presentation the defence filed an application with the Tribunal requesting that he be removed from all proceedings before the Tribunal. In particular it was argued that independent and impartial prosecutors are an integral part of a legal system based on respect for the rule of law. Their role is to ensure that crimes are fairly investigated and prosecuted in a manner consistent with the interests of justice. The defence argued that Prosecutor Malum’s membership as one of the warring parties during the 1971 War of Liberation meant that his appointment was in breach of the UN Guidelines on the Role of the Prosecutor and the International Association of Prosecutors Standards of Professional Responsibility. This application was summarily dismissed.

In one of the ‘Skypegate’ disclosures the Honourable Judge and Law Professor discuss the case of Professor Ghulam Azam and in particular Malum’s inability to control one of the prosecution witnesses, General Shafi Ullah. The problem, it transpires from the discussions, was that the witness “…cannot remember things”. Clearly a problem when one has already constructed the case that is to be presented. The principle concern with the General’s evidence, according to Dr. Ziauddin, was that he might discuss the war, which they were desperate to avoid. In Dr. Ziauddin words there was a concern that “if we put this point in his mouth-that there was a real war and the Pakistani Army were the main protagonist, they were everything and these people (the defendants) were nothing”. Dr. Ziauddin confirmed, “we are not very much interested with the war here.” Dr. Ziauddin went on to state that “When he is briefed he cannot remember things. This is the view of the Chief Prosecutor.”

This gaping hole in the construction of the case was quickly averted by the emergence of the witness Professor Sultana Kamal. A highly regarded member of the human rights NGO community in Bangladesh and on the face of it a highly compelling prosecution witness. Dr. Ziauddin stated that “she knew what to emphasise and what not to.” The disclosures go on to suggest that Dr. Ziauddin had spoken to Professor Kamal at length as to what she was required to say.

In considering this segment of the disclosures it is important to recall that these discussions took place before any of the witnesses had given evidence. Dr. Ziauddin had confirmed to the Honourable Judge that they had met and briefed Prosecution witnesses on the evidence that they needed to give and they should not focus on the nature of the conflict.

The ‘Skypegate’ disclosures introduce a number of different players connected to the International Crimes Strategy Forum. In one discussion Dr. Ziauddin refers to Rayhan Rashid, a central figure in the ICSF, who attended the ICC Assembly of State Parties side discussion on the Bangladesh Tribunal with Dr. Ziauddin. Dr. Ziauddin refers to his discussion with ‘Rayhan’ that ‘Malum Bhai’ now understands the “whole prosecution strategy”. It is clear that Rayhan Rashid’s role in this is far from peripheral.

The event at the ICC Assembly of State Parties, organized by No Peace Without Justice, is particularly interesting for two reasons. First, it occurred just one month before The Economist broke the story on ‘Skypegate’ and therefore the two recordings confirm that the distinctive voice in ‘Skypegate’ was that of Dr. Ziauddin. Secondly, and more importantly, Dr. Ziauddin is introduced as a Professor of International Law and as a witness to the events of 1971. At no stage during his presentation, or that of his colleague Rayhan Rashid, did he mention that he had served as an advisor to the Chairman of the Tribunal or had advised the Government, Prosecution or Tribunal on the trials, the evidence and preparing prosecution witnesses. Clearly this was an oversight.

The removal and selection of judges is a matter that figures extensively during the discussions. Justice Zaheer Ahmed, one of the original judges appointed in March 2010, suddenly resigned in August 2012 citing health reasons. The Honourable Judge informed Dr. Ziauddin that Ahmed had resigned after being summoned by the Minister for Law, Justice and Parliamentary Affairs, Shaffique Ahmed. Justice Ahmed had been instructed to resign by the Law Minister, and as it transpired from ‘Skypegate’, that he would be appointed to the Law Commission provided he did not disclose the real reason for his departure.

The new appointment to replace Justice Ahmed, Justice Jahangir, caused some excitement between The Honourable Judge and the Law Professor. The Honourable Judge confirmed that Jahangir was an Awami League supporter and that he was commonly known as ‘Gold Jahangir’ indicating there were previous allegations of corruption – something Justice Jahangir vehemently denies. The Honourable Judge reassured Dr. Ziauddin that “No, there will be no problem, because he has been told, whatever the Chairman says, you just say yes’.”

The Honourable Judge at one point expressed some concern over the former Registrar, Shahinur Islam, appointed as a Judge to the Second Tribunal. There are of course concerns that a Registrar, the person responsible for managing the administration of a court and liaising with both the Prosecution and Defence and having intimate knowledge of the cases, is appointed a judge, but these concerns were never addressed. It is also important to note that the Justice Islam, when he was still Registrar, spoke at an event in London at the Institute for Advanced Legal Studies with Steven Kay QC, John Cammegh and myself on the Tribunal in which he discussed the conduct of the trials and their adherence to international standards of fairness and due process. One might suggest that this very matter would rule his appointment incompatible with those very standards that he sought to defence as he had already disclosed his view.

Whether one considers his appointment appropriate or not, the Honourable Judge expressed some concern as to Justice Islam’s suitability as a judge as “…he is too inclined to the international standard.” Dr. Ziauddin expressed his equal dismay. He replied:

He has to be stopped from doing that or he has to be removed from there. Because it is so important matter. If he does not stop, he has to go as well, because it so harmful for us. It will bring dangerous harm, because in the appellate division, the strong argument of the defence will be based on that. Already he did not incorporate genocide in the way he framed the charge. All the charges are under crimes against humanity. This is a matter of serious concern. Here he is trying to almost change the history.”

The Honourable Judge refers to the attempts to push three verdicts by the end of December 2012. He refers to pressure put on him by Justice Surendra Kumar Sinha at the Appellate Division of the Supreme Court. He says:

Mr. Sinha says give three verdicts by December, this one [Sayedee], Azam, and {S.Q. Chowdhury]. Then we will promote you here. You will not be required there. I told them do whatever you wish, give my promotion first.

It is notable to mention here that Justice Sinha was appointed to sit on the appeals bench. On 3 April 2013 a defence application was filed seeking the recusal of Justice Sinha. The application also sought the recusal of Justice Shamsuddin Manik Chowdhury for entirely different reasons. The recusal application was filed under the Constitution of Bangladesh and the Supreme Judicial Council Code of Conduct. In particular it was argued under Clause 3(6)(a) of the Code of Conduct which provides that: “The judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” The defence argued that Mr. Justice Surendra Kumar Sinha’s alleged conduct, which was not at any stage denied, raised serious concerns as to the appearance of bias against all the Accused before the Tribunal. By such conduct, Mr. Justice Surendra Kumar Sinha had eroded his credibility within the meaning of the provisions of the Code of Conduct and threatened the integrity and independence of the Appellate Division of the Supreme Court. The overriding question was not a challenge to the judge’s integrity, but whether an objective observer would apprehend that there is a legitimate fear he will lack the required level of impartiality due to his offering of a promotion to the former Chairman of the Tribunal

Under international law, the procedure for determining impartiality is highly important. If an accused raises the issue during the proceedings it must be investigated unless it is “devoid of merit”. This requires the court to determine whether, apart from the judge’s personal conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this respect the position is very clear. If there are legitimate reasons to doubt the impartiality then that judge must withdraw from the case.

The recusal application was dismissed without further inquiry in breach of the aforementioned principles.

It is important to note at this juncture that the emergence of the ‘Skypegate’ revelations was not the first revelation to plague the Tribunal and the Government of Bangladesh. One must not forget that there had already been significant criticism of the process from a whole host of international actors. The Government of Bangladesh continued to label any and all criticism as an international conspiracy pioneered by the defendants and their lawyers. I was labelled as an international lobbyist for my clients. That is not untrue. My role was to highlight the plight of my clients. I am duty bound to pursue each and every avenue of appeal for my clients to ensure they receive a fair trial. I do not apologise for this as it would be negligent of me to do otherwise.

The allegations of an international conspiracy remain. This is all despite the fact that the UN Working Group on Arbitrary Detention had ruled that the detention of the accused, all the accused, based principally on the lack of fair trial guarantees, was arbitrary and in breach of international law. There had also been a prosecution witness, who recanted his evidence abducted by members of Bangladesh law enforcement officials and thrown over the border into India. There had been repeated statements by members of the Government calling for executions of the ‘war criminals’. There had also been clear and documented allegations that the disgraced Chairman of the Tribunal was formally a member of a war crimes investigative commission that conducted investigations against the very same persons that now faced trial.

Regrettably, despite numerous applications, none of these matters resulted in the trials being halted and retrials ordered. Each of these matters in and of themselves had they occurred before the Courts of England and Wales would have resulted in the trials collapsing. However, then ‘Skypegate’ emerged. This was expected to be the straw that broke the camel’s back.

Possibly the most startling revelation in ‘Skypegate’ was the lengths to which the various ‘actors’ were willing to subvert the administration of justice by ensuring that their influence permeated every level and facet of the judicial process.

News headlines, and changes in personnel, when favourable to the parties were celebrated; for instance, the news of a new Home Minister was greeted with glee. Dr. Ziauddin noted that “Shahrar Khatun (home minister) is removed, that is very positive. The one they have now appointed. A lot of people (us) have good access to him; he was already an ICT contact person. So this will be positive. At that news, the Honourable Judge stated “Malum will now sleep in peace. This is an interesting yet sinister exchange between the Presiding Judge and his legal advisor discussing how the trio, including the lead prosecutor Zead al-Malum, rejoiced at the appointment of the new Home Minister as he was already an ‘ICT contact person’. This was not an expression of joy concerning a peer elevated to a ministerial post – this was about how it was to benefit their planning and construction of the cases before the Tribunal.

It is accepted, that an innocent observer could infer that the discussion merely focused on the expression of an opinion by the parties; however, such comments must be seen in the wider context, in that it is not just that opinion is being expressed between friends, it is all part of a carefully planned strategy so as ensure an agenda is pursued. A strategy that also includes the ICSF taking an active part in the preparation and presentation of the prosecution case as we can see when issues concerning a witness is discussed by Dr. Ziauddin, “I have not seen the witnesses fully yet. The very fact that such issues are being considered between a third party and a presiding judge provides further credibility to the suggestion that the trials are simply working towards a pre-conceived conclusion. Where else would one overlook the fact that an advisor to a judge was commenting on having spoken to multiple witnesses in a criminal trial.

Earlier in this article we considered how Bangladesh was from the outset offered a significant amount of assistance from numerous international experts which were at all times rebuffed. No good reason was given for this, however, there does appear to be a tacit inference of fear amongst the parties as to how the proceedings appear, and the influence that any such international expert may bring to bear. We clearly see this concern evidenced in the Honourable Judge’s comments when he discusses the defence application for expert foreign witnesses appearing before the tribunal, in that he simply states “We wont allow it. We will not issue summons”. What is of further concern however, is that the Honourable Judge then seeks approval and assistance for this refusal, asking “What order should I pass. It is a central principle of a fair trial that those presiding over a trial are to be independent decision makers; the judiciary is sacrosanct and must be free from any external influence, and yet it is quite clear that Dr. Ziauddin was directing the Honourable Judge as to what orders to pass.

This influence is at such a level, that not content with directing the Honourable Judge which orders should be made, Dr. Ziauddin also demands that individuals are rebuked for daring to comment upon the procedures adopted. For example, when discussing the potential for Lord Carlisle QC, a member of the UK House of Lords and one of the countries’s leading legal experts, to attend the tribunal, he states “Now they are saying that the issues that are there were in fact raised by Lord Carlisle himself at the House of Lords. Can you imagine this? The time has come for them to be rebuked.

It has been frequently alleged in the past that there is a suspicion of corruption within the tribunal and those actors involved. This is of course consistently denied. However, during the conversations, the Honourable Judge referred to Judge Jahangir as ‘Gold Jahangir’, a reference to previous allegations of corruption. In one exchange the Honourable Judge noted that “a corrupt person has been given this appointment”, and thus an admission.

It is of the utmost concern that a member of judiciary presiding over the trials has been appointed amid serious allegations of corruption. This is not to suggest that the allegations were true, and the Judge in question has at all times protested his innocence. However, it is the appearance that is all important as any verdict passed by the Tribunal is likely to be subject to the most rigorous scrutiny and the process, upon which the nation relies, must be beyond reproach.

Corruption is of course an emotive term, however it is difficult to see how the actions taken can be termed as anything but. All the more so when we consider the deliberate tactics of the ICFS to ensure that their affiliates are given positions within the tribunal. The Honourable Judge was aware of this, and accepts it, a conversation takes place about a new member of staff in the Tribunal. The discussions focus on the appointment of an Assistant Registrar and Dr. Ziauddin states “…he is a good boy, he joined judiciary and studied in UK. He joined Tribunal after passing BCS exam. He is our guy!”. Dr. Ziauddin confirms that he is associated with the ICSF and agrees to the Honourable Judge raising his ICSF affiliation with new appointee directly.

It is evidence that there are no ends to which the ICSF with the approval of the Honourable Judge will not go, to ensure that they remain in control of the proceedings, and that their pre-conceived agenda is fulfilled.

The agenda being pursued is evidently of paramount importance, and nothing is to be allowed to frustrate this. I have experienced this first hand given the extraordinary lengths that they have been gone to, to attempt to prevent me from representing my clients. Even I have been the subject of their discussions. In one exchange, Dr. Ziauddin raises the issue that the defence are looking to bring me to the trials, and the Honourable Judge responds thusly “To bring Toby Cadman? That wont happen. Decision after decision is taken to ensure that the defence team are as restricted as possible in presenting their case. This is despite a meeting taking place in early 2011 with Ambassador Rapp, the Law Minister, the Judges of the Tribunal and the Registrar in which the issue of international legal counsel was openly discussed and the Chairman clearly stating that it was not his decision but that of the Bar Council. However, in August 2011, sometime after this discussion is alleged to have taken place, I was prevented from entering Bangladesh and thereafter placed on a black list as were the rest of our defence team from 9 Bedford Row International.

This restriction is also apparent in the arbitrary limits placed on witnesses and on the time allowed for cross-examination of prosecution witnesses, Dr. Ziauddin demands that the defence are not to be allowed a significant period of time to cross-examine, ordering the Honourable Judge “Dont let them linger, be careful about that, and offering his approval when the Honourable Judge advises that “Weve restricted Defence witnesses to 12 persons in Golam Azams case, and then asks “Is 12 alright. Dr. Ziauddin confirms his approval.

The most staggering example of the level of influence however is the fact that it is the ICSF who intend to write the judgments, and write the judgments prior to the trials concluding. Dr. Ziauddin when discussing an ICSF associate states “Yes, Raihan is very active now. The way he is precedinghe is writing one piece after anotheryesterday I told you something, rememberregarding giving judgment. Sayedees case. We have prepared a rough structure, I will try to send you the structure tomorrow.

Time and time again criticism is made that the Tribunals are subject to influence, political or otherwise and time and time again this is rejected in the basis that the trials are free, fair, and transparent. Yet nothing could be further from the truth.

What has begun as an honourable and justifiable journey for justice, has just become a tool to exact revenge and adhere to a pre-conceived agenda.

In addition to the Skype recordings, there are also several hundred emails that are relevant and show just down deep the influence permeates. One of many concerns within those emails is that there is clear reference to defence communications being forwarded to the judge. In one exchange a summary of meetings held at the UN Office of the High Commission for Human Rights in Geneva was distributed amongst members of the defence team. It would appear that this confidential communication was sent to The Honourable Judge by the ICSF. Numerous other e-mails detailed conferences and seminars that members of the defence had attended and what they had discussed. There were even disclosures of what members of the defence team had written on their Facebook and Twitter accounts in a truly Orwellian manner.

Whilst much of the media focus and attention has been on the Skype recordings, the e-mails (http://www.tribunalleaks.be/bdictunveiled/index.php/documentation/emails) demonstrate how involved members of the ICSF are and fill in some of the gaps that the Skype discussions do not fully explain. The e-mails and the numerous document attachments show that the real work is being undertaken by a number of worker bees at the ICSF and this process is being carefully managed by Rayhan Rashid whilst studying his PhD at Oxford University.

One of the disclosures in the e-mails is a communication from Rashid to the Honourable Judge, Dr. Ziauddin, Prosecutor Malum and the ‘ICSF-workgroup’. The e-mail is entitled “Strictly Confidential: Delegation of UK journalist” and details a plan, arranged by the Bangladesh High Commission, for three British journalists to travel to Bangladesh. The e-mail notes that two of the journalists have strong positions concerning Islamists in the UK and Europe and the third is in “ICSF’s broader network”.

In a further e-mail disclosure Dr. Ziauddin writes to the Honourable Judge and the Prosecutor proposing an amendment to the Tribunal’s Rules of Procedure. This is followed by an e-mail communication, forwarded by Dr. Ziauddin to the Honourable Judge, detailing a further communication between Rayhan Rashid and Dr. Shah Alam, a Member of the Law Commission and a member of the Awami League.

The e-mails are voluminous and detailed. They clearly demonstrate a policy aimed at circumventing the law and delivering a pre-determined result in the war crimes trials. The communications clearly show that judges, prosecutors, activists and members of the government may have conspired to pervert the course of justice. These are of course very serious allegations that require a proper investigation. However, despite repeated requests the Bangladesh authorities have failed to do so.

Under English law the offence of perverting the course of justice is considered a very serious offence. It is an indictable only offence and carries a maximum sentence of life imprisonment. The elements of the offence that: (a) a person does a positive act; (b) which has tendency to pervert; (c) which is intended to pervert; (d) the course of justice.

According to the Crown Prosecution Service Guidelines the word ‘pervert’ can mean ‘alter’ but the behaviour does not have to go that far – any act that interferes with an investigation or causes it to head in the wrong direction may tend to pervert the course of justice. All the prosecution needs to prove is that there is a possibility that what the suspect has done “without more” might lead to a wrongful consequence. The prosecution must prove an intention either to pervert the course of justice or to do something which, if achieved, would pervert the course of justice. All that is necessary is proof of knowledge of all the circumstances, and the intentional doing of an act which has a tendency, when objectively viewed, to pervert the course of justice.

One of the questions that must be answered is whether the offence was committed within the jurisdiction. As is quite clear the matters set out here alleges conduct that would constitute an offence of perverting the course of justice. It is also quite clear that the offence is multi-jurisdictional. Elements of the offence are alleged to have been committed in the UK, Belgium, Bangladesh and possibly further afield. Despite the multi-jurisdictional elements of the offence, it is clear that some of the conduct occurred in the UK and therefore there is a clear basis for the appropriate UK authorities to initiate an investigation.

It is important to note that these are allegations. All of the matters set out in this report are taken from material already in the public domain and available to the Bangladesh authorities to conduct an investigation. It is also important to note that the matters set out in these allegations have not been denied.

Conclusion

The Bangladesh authorities have never initiated any investigation. None of the players have ever been charged with any criminal offence or placed under investigation. Instead the Bangladesh authorities have sought to target the whistleblowers. In this regard it is important to recognise that the information was obtained through illicit means. However, it must be equally recognised, as the Economist made clear in its defence following contempt charges being brought for publication, that the publication was justified in the interests of justice.

The Attorney General, Mahbubay Alam, stated that ‘Skypegate’ was recorded with a “malicious intention to delay and foil the trial of the war crimes accused”. He stated that there was no nothing improper in the discussions between the Honourable Judge and the Law Professor. It is interesting that the Attorney General did not seek to deny that the recordings were genuine; he merely stated that they are not improper. Such a suggestion is with due respect fanciful.

It is quite clear that the disclosures were not intended to delay or foil the trials. My clients have at all times confirmed that they are willing to stand trial before an independent and impartial tribunal of law supervised by the international community. This right has been denied.

The intention behind the development of the Tribunal, was to address impunity, to seek justice, and to address the crimes of the past.

What is being done however fails to achieve any of these stated aims. The tribunal re-enforces impunity, as it is now the turn of the Awami League and those that hold the power to act in any way they see fit and without rebuke. The tribunal does not seek justice, it seeks punishment and revenge at all costs, and the tribunal does not seek to address the crimes of the past, it perpetuates the culture of impunity.

It is inconceivable that the tribunal can be heralded as a success with such clear instances of manipulation.

The allegations set out in this paper would tend to suggest that there is a clear basis for any and all of those involved to be immediately subjected to an independent investigation given the prima facie case of a conspiracy to pervert the course of justice.

The tribunal has been manipulated at every level and thus all convictions handed down cannot be said to be free from this influence, or ‘safe’.

The only solution is for all cases currently before the tribunal to be halted and for those already convicted to have their convictions and sentences stayed and a full review ordered.

To enable the tribunal to seek to achieve its stated aims, it must be started afresh, developed with the assistance of independent international experts so as to ensure that its procedures and any verdict it may pass in the future is free from criticism.

To address impunity, and to address the crimes of the past is of paramount importance, but not at the cost of justice itself.

Failure to address these concerns will, as noted, simply result in a further deterioration of social cohesion within the country, and further enhance the thought that those in power are free from criticism and free from the rules that bind a democracy.


  1. See Election Manifesto of Bangladesh Awami League 2008, Ninth Parliamentary Election 2008, and “A Charter for Change”.
  2. 25 October 2010, 28 June 2011 and 19 April 2012.
  3. A number of constitutional rights under domestic law were removed by the First Constitutional Amendment 1973 which introduced Article 47(3) and Article 47A into the Constitution. The Articles purport to remove the right to redress; protection of law; protection from ex post facto laws; to speedy and public trial; enforce guaranteed constitutional rights. Section 19(1) also excludes the Bangladesh Evidence Act and Criminal Procedure Act.
  4. Opinion No. 66/2011, Working Group on Arbitrary Detention, Secretary of the United Nations, Miguel de la Lama, 6 February 2012.
  5. Under the original ICTA there was no power to do so.

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