Telling the truth about the tribunal process

by David Bergman

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

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

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

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

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

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

The US ambassador-at-large for war crimes Stephen Rapp, who visited Bangladesh a number of times over the past years to monitor the trial process, has emphatically lauded all attributes of the trial process in his last visit to Dhaka in August. In his words, “the best way in the world to find the truth is the judicial process where the evidence is presented, where witnesses are cross-examined, where both sides have an opportunity to be heard and that is what is being done here [Bangladesh]. It is the process that the American government strongly supports,” he affirmed.

Perhaps the only correct statement are his first three words, ‘in my limited research’. His research was certainly very limited! There are certainly positive things that can be said about the tribunal – but what the article sets out in these two paragraphs is mostly inaccurate.

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

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

These are the ways in which the tribunal in Bangladesh are not as transparent as most other international crimes tribunals. (a) there is no transcript of proceedings; (b) applications made by prosecutors and lawyers for the accused are not publicly available; (c) Tribunal orders given from August 2010 until September 2013 (for Tribunal 1) and June 2013 (for Tribunal 2) are not publicly available; (d) it is difficult (though not impossible) for any person who is not a journalist, lawyer or a party to the tribunal to gain entry to the proceedings; (e) it is not filmed for internet viewing. For these reasons, it cannot be said that the tribunal is a particularly transparent process.
2. “….. and where the defendants are given VIP treatment.” 
I think one can be assured that the facilities of the jails in the Hague, for example are better than those in Bangladesh – even if in Bangladesh they are called VIP.
3. “Also in accordance with international standards, trials are open to all.” 
Technically the trials are open to all, but in practice they are difficult to access if you are an ordinary member of the public who just wanted to watch the proceedings. You need to get a pass, and to get a pass you need to get permission from the registrar, but the registrar is inside the tribunal building, and it is not easy to get access to the registrar to get the permission.
4.  “At the same time, the accused are given adequate time and facilities to prepare their cases.”
Clearly, this depends on what is considered to be ‘adequate time’ to prepare their cases. The law states that a trial can start as little asthree weeks after the prosecutor provides the ‘list of witnesses intended to be produced along with the recorded statement of such witnesses … and copies of documents which the prosecution intends to rely upon in support of such charges.’ (section 9(3)) Some of the trials have taken place just over three weeks after the lawyer has received the documents, and in other cases they have been given a few more months.
5. “Prosecutors must furnish them a list of witnesses along with the copies of recorded statements and documents upon which they intend to rely.” 
This is correct – but it is the minimum you would expect the prosecutors to provide. It perhaps should be noted that the law does not though require prosecutors to provide any exculpatory evidence that they have found, which is required in the international tribunals and is a requirement common in developed legal systems
6. “Defendants also have an unfettered right to call witnesses … “
The defendants do not have an unfettered right to call witnesses. The Tribunal has limited the number of witnesses whom the accused is allowed to testify on his behalf. The Tribunal’s decision about the numbers of witnesses is generally made right after the prosecution has finished calling its evidence and is made without knowing the nature of the evidence that other witnesses, that the defense have sought to call, would have given. As a result:

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

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

6. “…. and to cross-examine prosecution witnesses.” 
It is not correct to say that there is an ‘unfettered right … to cross examine witnesses’. The appellate division has ruled that the accused cannot cross examine a witness on any previous statements that that witness had previously given. This includes statements that the witnesses are supposed to have given to the Tribunal investigation officer – which is the basis for the whole trial proceeding. This is a rule that does not apply in normal Bangladesh law nor do I know of any other jurisdiction where it applies. This is  significant as it means that the defense lawyers cannot point to the contractions between what witnesses stated in court and what they had earlier stated to either the investigation officer or in interviews to other people. To read how this was significant in the Molla case, see here
7. “The US ambassador-at-large for war crimes Stephen Rapp, who visited Bangladesh a number of times over the past years to monitor the trial process, has emphatically lauded all attributes of the trial process in his last visit to Dhaka in August. ….”

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

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

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

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

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