Two days ago the US Ambassador for Global Justice gave a conference call to a journalist from Prothom Alo newspaper and one from New Age (myself) who were asked to come to the American Centre
It is not clear why so few journalists were called, nor why the statement was not put on the US state department website.
Here is the article in New Age that was based on the call
Rapp however spoke for about 30 minutes, and the detail of what he said is interesting – whether one agrees with it or not.
Below is a transcript of the main part of the conference call. (There is some more, but the line was rather poor, and it will take time to transcribe, and this may not be possible at all.) For those interested to see what Rapp said last time he was in Dhaka in August 2013, see the transcript of that press conference here
On Monday, Rapp started by reading out the following statement over the phone:
‘The United States supports bringing to justice those who committed atrocities in the 1971 Bangladesh war of independence. In doing so, the ICT trials must be free, fair and transparent, and in accordance with international obligations that Bangladesh has agreed to uphold though its ratification of international agreements including the International Covenant on Civil and Political Rights.’ ‘Countries that impose a death penalty must do so with great care, in accordance with a very high standard of due process and respect for fair trial guarantees. It is inevitable that scrutiny will be heightened when a death penalty is pronounced. Therefore judges, as well as authorities having powers of commutation, should exercise great caution before imposing and implementing a sentence of death.’ As I said during my fifth visit to Bangladesh in August 2014, we have seen some progress but still believed that further improvements to the International Crimes Tribunal process could ensure these proceedings meet domestic and international obligations. Until it is shown that these obligations have been met it is best not to proceed with executions given the irreversibility of a death sentence.’
He then allowed some questions to be asked
Q: Could you clarify your position about the need for written judgement, and when it would be shown the obligations had been met
…. I think the concerns that I expressed and continued to express throughout the process, as I have said in May 2013 when I was there during the first hearings, and then on the appeal in the Molla case. And questions were then raised about the process, and I said ‘there are concerns, but the process is still on course, errors can be corrected and law can be followed in certain ways, and let us watch what the Supreme Court does and do not prejudge what the Supreme does, or jump to conclusions about what that is.’ Here we now have the final decision of the Supreme Court, but there are issues of great importance that were raised in this appeal. My familiarity with the case is from following summaries of the case in the press and also on the International Trial Observer website. My recollection is that we had seven counts charged, five of them resulted in a guilty verdict by the ICT. On every one of them it was for ‘complicity’, something which in international law we call ‘aiding and abetting’ in a crime, not being a principal in the crime, not being a commander in the crime, not being a direct perpetrator, but [instead] someone being complicit in the crime. And the sentences for counts 1 and 7, it was sentence for life. And in count 2 where the person was not killed but humiliated it was ten years. And then for 3 and 4 there was a sentence of death. The first of those cases [count 3] involved a horrible massacre on 25 July 1971 in an area in Sohagpur, and 144 named victimm and 120 unammed victims were killed by Al Badr and Razaker forces. The allegation against Kamaruzzman was that he had advised the group and there was no direct evidence of participation, there was contradictory hearsay about his participation; that under international law, means he would be convicted as as ‘aider or abetter’ or an ‘accomplice’ in that crime. I am quite familiar with aiding and abetting responsibility under international law having prosecuted President Charles Taylor of Liberia and obtained a conviction which was affirmed on appeal and given 50 years sentenced for that, and he was found guilty of aiding and abetting a group that has committed atrocities in Sierra Leone. And the legal standard was that one would have to show that he knew that the group was committing atrocities. He provided assistance to the group with that knowledge. It was not necessary that he attend the crimes that were committed, but that the assistance that he provided needed to be substantial and in fact needed to be something that caused the atrocities to be committed. And in this case at the trial level, we do not see that kind of standard upheld And I understand that this is an area of liability which is one where one must exercise great care to persons who were not directly implicated in crimes and did not attend the crimes committed (at least without any proof of it) to be held responsible. And so, looking at the trial judgment it does not appear that what we have here is following international law. But looking at the appeals judgment we may find that they have looked at the evidence, looked at some aspects that perhaps the trial chamber did not focus on and could find substantial support, and as I have said one cannot make that evaluation about what the appeal court did without having the judgment.
Noting your second point in your statement that great care needs to be taken before imposing a death penalty, in the case of Mir Quasem Ali and Nizami, do you think the judges took great caution before pronouncing the death sentence?
Let me be clear that I have had general questions about the process. There are aspects of it that have been challenging from the beginning. Because the rights that a Bangladeshi citizen would have when charged with serious crimes do not apply because of the provisions of the first amendment to the Bangladesh constitution 1973. And my approach from the beginning has encouraged this court, which stands alone and this process which stands alone outside the Bangladesh system, to apply those standards essentially on the basis that they are part of fundamental law, and certainly part of the obligations that Bangladesh has under the International Covenant on Civil and Political rights. And there are respects in which the procedures have concerned me, ways in which the defence has not been permitted to call witnesses as required under ICCPR, and to use prior and inconsistent statements … and those are concerns that I have which if applied in [normal] Bangladesh courts I think we would have answers to those question, but instead [in this situation] we have to look at each case and determine whether rights have been respected. I know people are very concerned about these crimes and there is a tendency to say that because these crimes are so awful we need to have a different kind of proceeding. And one can never take the attitude that because crimes are so horrible, and these were horrible crimes, that innocence is not a defence. Just because people are charged does not mean they are guilty and they deserve the right to challenge the case and this is provided under the constitution and laws of Bangladesh in normal cases and provided in international law and on those countries that have adopted it. So I have from the beginning raised concerns that there are aspects of the process that are troubling, the absence of the ability to review [the appellate division decision], as is the rule in other cases, and of course we had in the Molla case the impression that there would be a right to review when in that case the death penalty was first imposed at the appellate division which of course is not what happened in Kamaruzzman. We shall see. But there are those concerns that I have about the process generally and I think it important to respect those rights Now, in respect to individual cases. I am not going into the other cases, that you have just mentioned, they are not cases they are final, the supreme court appeal I am certain will be filed if they have not already and it will go through the appeals process and one has to evaluate everything that has occurred there. And of course on appeal, there are situations where the defence were not given an opportunity to call a witness with material evidence, and situations where witness was not allowed to be cross examined in a certain way. Those kinds of situation can be potentially corrected in the appeals process. And so I do not want to jump to conclusions on those cases until we get to the supreme court level. Here in Kamaruzzman, where we could potentially be facing an execution today with the expiration of a seven day amnesty period, we don’t know what the supreme court has done. Obviously, I am concerned in any case when a death sentence is rendered because it is an irreversible remedy, which is why in my country which does have the death penalty in a majority of states, some states have more executions than others, the federal courts have called upon to determine due process rights and whether they have been respected in those cases. We do allow the death penalty for very serious crimes, but make sure that they that there are protections afforded to the rights of the accused, that they have effective counsel, able to call the witnesses that might exonerate them, to cross examine, and if that is not done, those cases are retried. And then where you have cases of situation of evidence that is not strong, that might be something acceptable in a case with a lesser penalty, because you have an irreversible sentence, judges can have greater level of scrutiny on the factual matters. And in Kamaruzzman and in other cases, we know how difficult it is to find evidence 42 or 43 years after the fact, but that can’t be an excuse for executing someone on basis of evidence that is not sufficiently strong, which we would say in our system [is enough] to get a ‘binding conviction of guilt’ And here of course on court 4 we have witnesses that according to the trial chamber, there were variances of the date when crime occurred. And on count 3, on complicity based around providing advice with no specificity about what that advice was, and we have hearsay about his participation. I think, when evaluating that at the appeals levels, we would naturally have to look very carefully at that record to determine whether one has that abiding conviction of guilt under those circumstances. And I would very much like to see how the appeals chambers handles that, and particularly how they apply the facts or if they find facts that were not cited by the trial chamber, how they applied the law if those convictions are based on complicity. It is possible that they could have based them on ‘command and responsibility’, that is definitely one point, they could have been based on more active form. But if they are following the law on complicity, international law required that that they show that assistance that was provided was substantial and with knowledge that atrocities would be committed. And so the question is – did they find that proof? So that is why I am dealing with this particular case, now that we have this case decided, but we don’t yet see the decision, it is appropriate to say that until people can see it and evaluate it, an execution should certainly not take place, as it would violate basic fairness. But beyond that we can only evaluate where international standards applied once we have seen it, cant do it on basis of the trial judgment in this case was we cant in relation to the other cases that have not yet reached appeals level.