Geoffrey Robertson QC report 1 – the question of independence

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By David Bergman

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

It is a detailed 124 page report which should be read by anyone interested in the 1971 war and the ICT in Bangladesh.
I shall write a number of posts on this report – but this first post looks solely at the extent to which one can view the report as ‘independent’ (and ‘authoritative’) which is how it has been presented.
In a note at the beginning of the report,  it is stated that:

“This report has been commissioned and published by the International Forum for Democracy and Human Rights, a group of international lawyers some of whose members have been involved in giving advice to counsel defending those accused in the International Crimes Tribunal in Bangladesh.”

And in his introduction, Robertson adds that

“… I was approached in March 2014 by by Toby Cadman, one of the English barristers who had been advising the defence (necessarily, from abroad) and asked to review all the cases concluded so far and to provide an independent opinion on their fairness and on the Tribunal’s proceedings and conduct. To this end I have been provided with several thousand pages of court transcripts and have acquainted myself with the historical background both to the 1971 massacres and to the initial attempt to prosecute collaborators in 1972-3. I make no findings as to the guilt or innocence of the men who have already been convicted by this Tribunal, as I have not attended their trials – my concern is with the procedures adopted by the court and the pressure brought upon it by the government, which might conduce to miscarriages of justice.

IFDHR provides consultancy on international law. Toby Cadman is one of the four members of the management board. The organization seems to be a spin-off from the TMC Advisory Group which many of the same people, including Cadman, is involved.

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

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

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

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

“For all those reasons, and more, the reader can be sure that the Report really is “independent”.

He also added an interesting connection he has to the 1971 war:

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

How should one assess this?

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

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

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

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

* There is no suggestion meant that IFDHR has been set up for this purpose. Only that commissioning by IFDHR has the effect of distancing the Jamaat from the commissioning process.

Source: Bangladesh War Crimes