by Toby Cadman
On Friday 13 March 2015 a journalist, Abdul Mannan, writing for the Daily Sun Newspaper in Bangladesh, wrote an article entitled “Have A Good Day Barrister Toby Cadman”. The article, very much like Mr. Mannan’s previous piece, is thin on facts and heavy on rhetoric. Mr. Mannan has also ventured into the one thing he accuses me of, propaganda.
This is not the first time a person parading as a journalist has written about me and made accusations about my character. I have been labeled “The Devil’s Advocate”, “a paid lobbyist”, “a threat to national security” and “Jamaat’s mouthpiece”.
For the avoidance of doubt let me be quite clear about my role in the war crimes trials. I am all of the above and more. I am the defendants’ legal representative. My instructions are to take all proper measures to ensure my clients receive a fair trial and they do not face unlawful execution by a process that constitutes a flagrant denial of justice.
This week I spoke at an event at the Law Society of England and Wales. As the recording of the event will show, I started my remarks by saying that I am neither independent nor impartial. I am not required to be so as I represent the interests of my clients. To be honest, I would imagine my clients would feel aggrieved if I acted as a mere bystander. I am required to fight for them and fight I will. The International Crimes Tribunal in Bangladesh is an affront to justice and accountability. The Government of Bangladesh should be ashamed of itself for maintaining the spectre of legitimacy over a process that is so lacking in credibility.
The author in his attack on my character suggests that if I were a citizen of Bangladesh I would be charged. Well, Mr. Mannan, that is what separates our two nations. My country has a democracy and a government that I am able to criticize without fear of arrest. I can criticize the judgments reached by our courts and I frequently do. I remain respectful to our judges, prosecutors and lawyers as they abide by principles of conduct and professional ethics that the International Crimes Tribunal has long since abandoned.
The author starts his attack that I am an ‘appointed international lobbyist’ attempting to create controversy in the war crimes trials. To that end, I would respond that it is the Tribunal and the Government that have created the controversy. Mr. Mannan also mentions that there are attempts to tarnish the image of the Bangladesh armed forces and do their best to stop the UN Peacekeeping Operations from recruiting Bangladesh members. Let me start by stating that the UN now operates stringent human rights reviews of all States that contribute to the UN Peacekeeping Operations. Bangladesh has contributed greatly to peacekeeping operations globally and that is to be commended. I have encountered Bangladesh soldiers in the former Yugoslavia and various missions in parts of Africa.
On the whole they play an exemplary role in delivering the mandate of the UN. However, it remains a fact that several senior members of the Bangladesh Armed Forces are identified as potential suspects in conduct falling under the jurisdiction of the International Criminal Court in The Hague. These individuals have not been publicly identified by our legal team as it is not appropriate to tarnish the reputation of senior members of the armed forces until the ICC Office of the Prosecutor has had an opportunity to review the allegations. I have requested the UN to review those persons serving in UN Peacekeeping Missions to ensure that those allegations are properly investigated. That does not tarnish a nation. Mr. Mannan should be more concerned with how one bad apple has the potential to tarnish the otherwise good reputation of a highly valued contributing State.
Mr. Mannan refers to the statements of the UN Secretary General, Ban-ki Moon, having praised the ‘bravery, valour and contribution’ of members of the Bangladesh armed forces. I would be surprised if the UN did not make a statement considering the contribution to missions in Mali, Central African Republic, Democratic Republic of Congo and South Sudan.
Mr. Mannan then refers to his previous comment that the ‘Jewish attorney Toby Cadman’ was appointed by Jamaat-e-Islami to campaign against the war crimes trials of its leadership. I challenged this remark as I am not Jewish and saw no reason for the reference. The author claims that this was not an anti-Semitic statement, but continues to refer to me as ‘Jewish’. Now, for the sake of clarity I take no issue with being labeled as Jewish, apart from the fact I am not, but I do take issue when it is used in a derogatory manner.
The author claims he is not anti-Semitic and there was no connotation attached to it. If that is so then why use the term. If I were Christian, Muslim, Hindu or Buddhist would he have used the term? I very much doubt that he would have. He used the term because my clients are Islamists and it would somehow be demeaning to have a Jewish lawyer. Regrettably, it seems to be the case in Bangladesh that lawyers are frequently politically active and often divided along sectarian lines. My heritage is mixed. My mother’s family originated several generations ago from Egypt. My father is English. My wife is Bosnian Catholic. I consider myself agnostic. I oppose both religious and secularist fundamentalism. Politically speaking I am a member of the Liberal Democrats but their policies do not shape my legal career. I have no interest in standing office or supporting a political party through my work. That is something quite separate.
The author appears to confuse my passion for my work with an ideological alliance with my clients. That is quite a mistake to make. I represent all my clients with the same passionate belief. I was once asked why I chose to represent the defendants in Bangladesh and not the Government. That is an easy question to answer. Jamaat-e-Islami approached me first. Had the Government approached me first I would have acted with the same rigour. I would not have given advice that I considered to be wrong and I would not have spoken about matters that I considered to be false. I would have given stringent advice on how to reform the process and ensure fair trials according to the highest international standards, but I would have done it rigorously. I consider that to be a great failing of the Government of Bangladesh in that they could have secured the assistance of experienced international judges, prosecutors and academics. They chose not to. They supported a flawed process and now they must pay the price for the decisions they made.
The author recognizes that my campaign is to have fair and transparent trials. He states that I am not alone in that quest and he blames General Zia for the collapse of the trials in 1975. I am not sure that’s correct, but I am not a historian. It was my view that the trials were stopped before then by Shiekh Mujibur Rahman when he gave his ‘forgive and forget’ speech. Whoever was responsible for the collapse of the trials is not entirely relevant – we are dealing with the present not the past. Whether it was Shiekh Mujibur, General Zia or indeed the United Nations, it was a hugely foolish and costly mistake. Bangladesh is facing an existential crisis now for the very reason that it did not deal with accountability more than four decades ago.
The author makes the point that it is not an easy task to collect evidence, call witnesses and constitute Tribunals after a lapse of more than three decades. I completely agree. It is a monumental task. I faced this very problem investigating war crimes in Bosnia after a delay of less than a decade. However, that can never be justification for holding trials that fail to adhere to national and international standards. The right to a fair trial is absolute. There can be neither limitation nor derogation to this right, even in times of war. Furthermore, it is the duty of the State to organize its judicial system in such a way that its obligations imposed by international law are properly met.
It is quite right that prosecuting historical war crimes allegations is extremely difficult and presents national authorities with a huge challenge. The examples of Extraordinary Chambers in the Courts of Cambodia (ECCC) bears testimony to this. The process in Cambodia was initially under national jurisdiction. However, the process was deemed to be so fundamentally flawed that the United Nations established a hybrid tribunal. This is what should do done in Bangladesh – it is not too late.
The author claims that the Prime Minister, Shiekh Hasina Wajed, was committed to the process and that there was internal pressure from victims and the Sector Commanders Forum. It was therefore due to the civil society movement that the Tribunal was constituted and the trials started in 2010. This is an important statement. There has never been any criticism on my part for the civil society movement or for the Government’s initiative to set up a national war crimes tribunal. My criticism has been on the failure of the international community to address this issue for more than four decades and the Government for influencing and politicising the trial process now. It is not the initiative that is flawed it is the legal framework and the practice.
The author alleges that it is the duty of a lawyer to defend his client and not to campaign against the trial process outside the court. The author here unfortunately fails to appreciate the role of a modern day advocate and that there are many ways to represent the interests of one’s clients. The author confuses campaigning for one’s clients’ right to a fair trial and running a political campaign and adopting one’s clients’ political ideology.
In July 2010 I was asked by the Chairman of the IBA War Crimes Committee (IBA WCC) to speak at a session in the House of Lords on the legal framework of the Tribunal. At that stage, as an independent observer, I reviewed the legal framework and concluded that there were significant flaws. The IBA WCC had already published a report that set out a number of recommendations. I can confirm, as can the IBA, that I was not engaged on the research or drafting of the report as it predated my membership in the IBA.
In October 2010 I visited Bangladesh for the first time upon the invitation of lawyers representing the defendants. I visited the Tribunal, met the Judges, and spoke at a seminar on the Tribunal with Steven Kay QC, Abdur Razzaq and several members of the Supreme Court Bar Association.
The author tries to cloud the issue by suggesting that I am merely guided by money. It is true that I do not act pro bono for my clients in Bangladesh. That does not diminish the seriousness of what I do. I am first and foremost a lawyer engaged to represent the interests of clients. I doubt very much that the author works pro bono for the Daily Sun Newspaper. He is a journalist and is paid to write stories. It could be said that the political allegiance of the newspaper and the author demonstrates his lack of impartiality. Unlike a defence lawyer, one does expect journalists to demonstrate a modicum of impartiality.
The author next levels criticism that I frequently speak in rallies in New York or London against the trials and judgments. At one point the author quotes me as having said that accountability is necessary and that this is not possible without the intervention of the international community. I am quoted as having said that there is no mature democracy in Bangladesh that tolerates criticism and that having spoken to representatives from the UK, US and EU concerns have been expressed. All of these comments are entirely consistent with what I have said on a number of occasions. The criticism the author makes is that I have shared a platform with, amongst others, Nakibur Rahman. I fail to see the relevance of that. The person I shared a platform with is the son of one of my clients who has been sentenced to death.
The author then makes the monumental leap to draw the conclusion that I have defamed the Bangladesh State and my comments are tantamount to sedition and treason. The author then expresses a certain amount of disappointment that I am not a national of Bangladesh and therefore outside of the reach of the Bangladesh authorities. The author, it seems, would be more than happy to see me locked up like countless others who have dared the criticize what is an autocratic police state. The author conveniently makes my point rather well that the State is not a mature democracy.
The author then states that under Bangladesh law a foreigner cannot exercise rights of audience in national courts unless permission is granted by the Bangladesh Bar Council. That of course is partially correct. The Tribunal’s Rules of Procedure permit the appearance of foreign counsel for either the prosecution or the defence. The Tribunal judges took the view that the Bar Council was required to rule on the matter. An application was filed with the Bar Counsel that was regrettably denied. However, what this meant was that I was not permitted to appear as an advocate in court – it did not mean that I was not permitted to appear in court as an advisor to the defence team. Incidentally, a colleague of mine, Cherie Blair QC, appeared as a member of the defence team for the Prime Minister, Sheikh Hasina Wajed, when she was in opposition and faced trial. Ironically, the PM’s counsel at that time, Shafique Ahmed, the former Law Minister, was one of the most vocal critics in our application to the Bar Council.
The author then alleges that I made several visits to Bangladesh to visit my clients and presumably continue to do so. For the avoidance of doubt I visited Bangladesh on five occasions between October 2010 and August 2011. I only saw my clients once at the Tribunal, but was not permitted to speak to them. On the one occasion I was able to observe proceedings at the Tribunal I was not permitted to sit with the defence counsel, but forced to sit in the gallery reserved for international observers. I protested to the Registrar, now a judge in the Second Tribunal, that I was not an independent observer and should be permitted to sit with the defence team. The Registrar stood firm and so not to cause embarrassment I agreed.
During the hearing, a mobile telephone that I had been given by the defence team, began to ring. I had forgotten to switch it off and was most embarrassed by the event which was clearly against Tribunal rules and quite rightly so. I switched off the phone and offered my most sincere apologies to the judges. However, what followed was truly extraordinary. The Chief Prosecutor made an application to the judges to have me physically removed from the Tribunal as I was not an observer but an advisor to the defence – as if such a notion was somehow contemptible. The Chairman, as he was then before having to resign, graciously responded that I was their guest and permitted me to remain. The session last for an hour and then it was adjourned for lunch. As I descended into the courtroom I was circled by the prosecutors making allegations that I had recorded the proceedings with my ‘pen’. The allegations became quite aggressive and I was promptly ushered out of the court by the Registrar with an apologetic request for me not to return after the lunch-break. That was the only time I observed proceedings at the Tribunal.
I was permitted to visit Bangladesh on one more occasion following this incident. However, the last time I visited Bangladesh I got no further than the airport. On 5 August 2011 I travelled from Bosnia, where I was on holiday with my family, to Dhaka to hold a series of meetings and speak at a seminar organized by the local defence lawyers.
I made the mistake of not applying for a visa in advance of travelling. However, as I was travelling from Bosnia there was no possibility to obtain a visa in advance unless I returned to London first. I decided to contact the Bangladesh High Commission in London to seek guidance. I was assured that it was permissible for me to apply for a visa on arrival. I had done this four times previously as my passport will show. Unfortunately, the Bangladesh High Commission denies ever having given me this advice, which in the circumstances, is not altogether surprising.
On arrival at the airport I presented my application which clearly stated I was attending meetings and a seminar. The immigration officer presented me with a dossier bearing my name with an instruction from the Home Ministry ordering all immigration authorities to refuse a visa and deny entrance. I contacted the British Consul who came to the airport immediately and was shown the Home Ministry communication. I remained at the airport for the next 10 hours and was then deported. During my stay I was treated with the utmost courtesy and not interrogated at any time. I was guarded by airport security but that was the extent of the treatment. The author is quite incorrect when he says that I presumably continue to visit Bangladesh. After my deportation it was agreed that our legal team would submit business visa requests with the High Commission in London. These requests were made in Autumn 2011. They have not been responded to so far.
The author next addresses my 2012 visit to the Kingdom of Saudi Arabia. He criticizes my comment that my client was arbitrarily restricted to call 12 witnesses. He quite rightly makes the point that no court can hear thousands of witnesses. I completely agree. I do not consider it to be a sensible tactic to file a list of several thousand witnesses and it is not something that I supported. It is also a point that Geoffrey Robertson QC alludes to in his recent report on the trials.
The issue with the calling of witnesses is that their evidence must be relevant. It is for the defence to demonstrate that they are relevant and their evidence goes to an issue of the trial. They may be identification witnesses, alibi witnesses, character witnesses, expert witnesses even insider witnesses, but their evidence must be relevant and not aimed at wasting the court’s time. The problem with setting a maximum number is that it is arbitrary.
The author refers to the Nuremberg trials and makes the broad sweeping comment that there were no witnesses at Nuremberg and those that represented the accused were later tried and sentenced. That is just not true. If the author wishes to comment on the historical relevance of the Nuremberg trial he should at the very least educate himself on the bare facts. At the main Nuremberg Trial the Tribunal held 403 open sessions. 33 witnesses gave live evidence for the prosecution and 61 witnesses gave live evidence for the defence and a further 143 witnesses submitted written responses. Further, 19 of the defendants gave evidence in their own defence. It is preposterous to suggest that any witness was charged for giving evidence or any defence counsel charged for discharging his professional duty to the court. It is the position that a number of defence witnesses and lawyers were charged with offences connected to the war, but that is a very different position entirely. If the author is suggesting that those representing persons on trial for war crimes or giving evidence for the defence should be charged with some other offence then that is truly worrying. Defence lawyers play an extremely important part of maintaining the rule of law through the presentation of a rigorous defence case.
The statement that “no court is transparent like the ones in Bangladesh” borders on the ridiculous. The suggestion that other courts are not open to the public as the Tribunal is quite simply a ludicrous remark. All international tribunals are open to the public and any suggestion to the contrary is deeply misleading. National and international courts that deal with war crimes cases may on occasion hold hearings without the attendance of the public due to the fact that a protected witness is giving evidence or the subject matter concerns an issue of national security. That is a common practice in most war crimes trials but the overriding principle is that proceedings should be held in public.
The author attempts to reinforce his argument of superiority by declaring that no other court allows an appeal to the highest court of the country. This is often the mantra adopted by the Government of Bangladesh. Nuremberg had no right of appeal and therefore the Bangladesh Tribunal is better. First, I don’t believe that any international lawyer would argue that the Nuremberg or Tokyo trials are particularly good modern-day benchmark. Second, all of the international tribunals, including the ICC, have established Appeals Chambers that allows both the defence and prosecution to appeal against a conviction or acquittal. Third, all of the international tribunals have established a practice of interlocutory appeal that permits the parties to appeal any ruling during the pre-trial or trial phase of the proceedings.
This is a matter that the Bangladesh Tribunal’s legal framework does not recognise. Interlocutory appeal is a fundamental protection that is essential during the trial process. It is essential that the parties are entitled to challenge rulings such as the jurisdiction of the tribunal, the appointment of a judge, charge decisions, decisions on the admissibility of evidence and provisional release. The Bangladesh Tribunal permits the same judges who issued the original ruling to review its own decisions. It is quite clear that in order to comply with international instruments as to fair trial any process of review or interlocutory appeal must be decided by judges other than those that made the initial decision. Anything short of this renders the protection illusory and lacking practical effect. Fourth, the national war crimes courts in Bosnia and Herzegovina, Croatia and Serbia are all established within the national legal framework and not only permit appeal to the highest appeal court, but also have separate levels of appeal to the Constitutional Court and finally to the European Court of Human Rights.
It is disturbing and demonstrative of the author’s lack of legal knowledge when he refers to ‘appeal’ as a privilege. It is not. It is a right that must be practical and aimed at remedying any flaw in the trial. It is clearly set out in the International Covenant on Civil and Political Rights (ICCPR) to which Bangladesh is a signatory.
The author cites the 2 week adjournment in the review of the death sentence in the case of Muhammad Kamaruzzaman. The author asks if I remain doubtful about the transparency of the process bearing in mind this act of benevolence by the Appellate Division of the Supreme Court. Frankly, it’s an unsustainable position to take. Transparency of the process is not measured by a 2 week adjournment following a conviction and death sentence that constitutes a flagrant denial of justice. It is measured by a proper trial and appeal process that sadly is lacking,
The author suggest that I make my living representing those accused of war crimes. In fact, apart from my clients in Bangladesh and a handful of domestic appeal cases, defence work is something that I rarely do. If the author bothered to research, or for that matter conduct an interview with me, he would surely know that my legal practice is almost entirely prosecution work. I am frequently instructed by the Crown Prosecution Service Serious Crimes Unit as a Senior Crown Prosecutor for the Extradition Unit. I am presently instructed by the Government of India and the US Government in two extradition requests. The rest of my time is taken up with investigating war crimes and human rights violations in Syria, Egypt, Palestine, Iraq and Libya.
The author cites the fact that I have spoken on behalf of Jamaat-e-Islami and the Muslim Brotherhood in London and advocates their causes. I disagree. I am not an advocate for their causes and nothing that I have ever presented publicly can be interpreted as fighting for their cause. I do not. I am instructed to advise on legal issues and to highlight areas that I consider are important to the international community. It is interesting that the author refers to Bangladesh and Egypt in the same breath. There are indeed many parallels between the two nations and many similarities between the policies of General Sisi and Sheikh Hasina.
The author approaches the end of his tirade of criticisms by stating that I will surely agree with him that Bangladesh’s legal profession is highly reputable and compares it with Cambodia that, in his words, had neither the law nor the expertise and is therefore required to draw on Bangladesh’s experience and need international assistance.
I would respond by saying this. The Bangladesh Tribunal is an example of what not to do – ever again. To suggest that the Cambodia Tribunal draws on the experiences of the Bangladesh model is quite frankly an insult to the Cambodian Tribunal.
The Cambodia Tribunal was set up by an agreement between the Government of Cambodia and the United Nations. It was internationalized due to serious concerns as to the fairness of proceedings and allegations of torture in custody. The “Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution Under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea” was signed on 6 June 2003. To therefore suggest that Bangladesh has contributed to the development of the process of accountability and justice is simply delusional.
The final remark by the author attempts to make the point that “[I have] the discretion of defending [my] clients in any way [I] can but campaigning against the trial is not something that falls within [my] purview and is unethical I suppose.” He goes on to suggest that the laws and constitution are internationally recognised. He then concludes that I should practice in the UK or EU where terrorists are “seldom taken prisoners but executed summarily”. I don’t agree. EU Member States have established legal systems that are broadly compatible with norms of international justice. They are signatories to the European Convention on Human Rights and many are State Parties to the International Criminal Court.
Bangladesh on the other hand has a history of human rights violations. Whilst it is a State Party to an array of human rights treaties and is a State Party to the International Criminal Court, the vast majority of these rights are illusory. There are hundreds of documented cases of arbitrary arrest and detention, torture in police custody, enforced disappearance and extra-judicial execution. Recently there have been attempts to amend national legislation on torture so that it does not apply to law enforcement officials. This really would be step back into the dark ages.
The 1971 War of Liberation saw Bangladesh emerge from a bloody nine month conflict in which it is estimated that more deaths were recorded (or at least estimated) than were killed than in all the conflicts of the Former Yugoslavia, Sierra Leone, Rwanda and East Timor put together.
Bangladesh, in my view, is the perfect example of what happens when you fail to properly address accountability. Immediately after the cessation of hostilities Bangladesh took the very bold step, with the assistance of the International Commission of Jurists, of drafting the first war crimes statute since Nuremberg, the International Crimes (Tribunals) Act 1973. The International Crimes Tribunal was established following the enactment of this unique, albeit now outdated, piece of legislation.
Accountability in Bangladesh has consistently been avoided in the interest of peace and stability. It was initially the intention to put on trial those senior Pakistani military leaders that bore the greatest responsibility for crimes committed during the nine-month war of liberation. Regrettably, the process was abandoned in the interest of lasting peace and reconciliation. This process was re-enacted in 2010 and since that time has put on trial a number of Bangladesh nationals accused of having collaborated with Pakistan.
The Tribunal was established with the stated aim of bringing to justice those who committed crimes of an international character during the nine-month war. Regrettably, whilst its establishment was applauded by the international community, since then the legal framework, the conduct of the trials and widespread accusations of political interference have come under the scrutiny of the international community that has resulted in a number of international actors washing its hands with the process. This is a serious failing that has allowed a process, that could have been an example of national accountability for international crimes, descend into a travesty of justice. Instead, it has become a lesson in what not to do.
It is the duty of the present 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 taken during what started as a civil war. The defendants cannot be convicted for merely being on the losing side of a conflict. The only way the defendants can be convicted is if specific crimes can be attributed to their conduct beyond a reasonable doubt.
One of the critical concerns in Bangladesh is that the process has become a political tool of victor’s justice. There is no question of civilian or military leaders from either Pakistan or India facing trial. There is no possibility of anyone for fought on the winning side facing trial. Nor does there appear to be any prospect of those suspected local collaborators receiving a fair trial.
Bangladesh is a State Party to the ICC. It is a member of the UN and the Commonwealth. We cannot remain indifferent to impunity wherever it lies and whatever shape it takes.
In the words of Lord Hoffman in the House of Lords on whether indefinite detention of terror suspects was lawful. Lord Hoffman stated:
“[S]uch a power in any form is not compatible with our constitution. The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.”
The author suggests that I want to stop the trials. I do not. I consider that the Tribunal in its current form should be stopped, but it must be replaced by an effective mechanism of justice. I do not believe that a culture of impunity should prevail and I do not consider that the victims should be denied the opportunity to seek redress in a court of law. I consider that the Government of Bangladesh, in the current political climate, is incapable of delivering a process that is fair and aimed at justice. That is why it should be replaced by a hybrid tribunal with international experts and Bangladeshi legal professionals. It is not too late to do this, but it will be soon.
Regrettably, the author confuses politics and legal representation. The two are distinct and unfortunately, in a system where the two are inextricably intertwined observers, such as the author, fail to recognise how the two can be quite distinct.
I am instructed to provide advice on the law and its application – that I have done.
The author, Mr., Mannan and others, should focus on that, rather than a preconceived agenda, and avoid that which he complains of; propaganda.
Have a good day Mr. Mannan.