[Attachment(s) from Nirob Dorshok included below]
Seeking justice for all – redress for victims and fair trial for the accused
by David Bergman
The New Age [http://newagebd.com/newspaper1/op-ed/39611.html]
In the early hours of 11 December 1971, at about 3.30 am, a group of men, including at least one Bengali, knocked on the door of the family house in Mohammadpur, Dhaka of Sirajuddin Hossain, the executive editor of the daily newspaper Ittefaq. One of them asked the journalist his name and position, and after Hossain told them, they took him away.
At about the same time, a group of armed men came to Naya Paltan and knocked on the doors of the flats rented out by the family of the journalist Ataus Samad. One of the men, a Bengali in civilian dress, asked the tenants in English where Samad lived. Both the tenants told the armed men that he was not in Dhaka, but had gone to Kishoreganj to celebrate Eid.
Ataus Samad had in fact moved out of his house in late November and was then living with his sister in a nearby area. Luckily, therefore, he escaped abduction. But on that very same morning those men had come for him, he remembers hearing screams from a residence neighbouring his sister's house, and a voice shouting, 'Save me, Save me.'
He thought it was the sound of his friend Najmul Huq, the chief news reporter of the national news agency, the Pakistan Press International, but he was not sure. The next morning he spoke to the guard at the gate of the house where Huq lived, who confirmed that the journalist had been abducted. Huq's wife confirms that one of the men who abducted her husband was a Bengali.
That same morning, armed men also came looking for the journalist Enayetullah Khan — then editor of Holiday, later to be founding editor of New Age – whose office was then in Naya Paltan (close to Ataus Samad house). A man in the office below told him that some people had broken down a door and beaten a tall young man mercilessly and he heard one of the men say, 'You are Enayetullah Khan, you must come with us.'
Later that morning, at about dusk, armed men turned up at the house where Ghulam Mustafa, a reporter from the newspaper Purbodesh, who was then living in Rayer Bazaar, Dhaka. Mustafa was at that time outside his house walking his baby who could not sleep. The men asked, 'Are you ANM Gholam Mustafa?'. He said 'Yes'. Then they said, 'Leave the baby for a while and come with us. We have to go to the office.'
After 16th December 1971, the families of Sirajuddin Hossain, Najmul Huq and Gholam Mustafa desperately tried to find their abducted relatives. Mass graves containing the decomposing bodies of other intellectuals taken in those days were found, but they could not find the bodies of their own loved ones.
I know about these and other abductions as, along with a group of young Bangladesh journalists and researchers, and a British television team, I spent a good part of 1994 investigating who was responsible for the murder of over a dozen intellectuals in Dhaka in the dying days of the country's independence war. No one before or since has I think investigated these series of murders at the level of detail that we did.
The result was an award winning film for British television's Channel Four called 'The War Crimes File'.
Many of you may know this film – as at the time it was shown widely in Bangladesh. Screenings were organised by Projonmo Ekkatorer (Generation 71 – a group comprising family members of those who died in the war) and it was later also broadcast a number of times on Bangladesh Television. Although the film was originally made for an English audience, in order to ensure that it could be seen by more Bangladeshis, a team of us working with M Hamid, the well known television producer, made a Bengali-language version of it, which was widely distributed.
The central allegation in the film was that one man, a member of the Jamaat-e-Islami's student wing in 1971, who after the war had moved to London, was involved in a number of these abductions of intellectuals.
The film also set out evidence to suggest that two other Jamaat-e-Islami members were involved in war crimes in Sylhet.
After its release, the film became an important tool for those highlighting the crimes that took place in 1971 as well as the need for accountability for those who had committed them.
Subsequently, I spent quite some time collecting affidavits to defend libel actions taken out against the broadcaster, Channel Four Television, as well as in trying to get the British authorities to take action against the men, one of them in particular.
All of this is well known to those who have been active in the movement for demanding justice for victims and survivors of war crimes. I am just setting it on record to make it clear that I am quite aware of serious allegations regarding the role of the Jamaat-e-Islami in 1971, the nature of the allegations and that I have been a part of the process of demanding accountability for war crimes in 1971, long forgotten in the west.
However, I see no contradiction in also being a strong supporter of ensuring that the International Crimes Tribunal set up in March 2010 to prosecute those alleged to have committed international crimes in 1971, is independent, fair and follows acceptable due process standards.
This position of course has been, at least at the level of rhetoric, also the view of the Bangladesh government – and several ministers have repeatedly said that the tribunal will match not just the best national standards, but 'international standards'. The Tribunal's Registrar has himself also stated that the tribunal will match 'universally recognised standards.'
For obvious reasons, the need for due process and fairness are requirements for every criminal trial – not just for those accused at the ICT. And whilst the historic nature of the tribunal can easily allow one's focus to get locked onto the tribunal, it is very important not to forget all the other trials that take place in Bangladesh where just as much may be at stake for both the accused and the victim.
But, at the same time, there are some additional reasons why the issue of high standards is particularly important to this international crimes tribunal.
First, appropriate standards can ensure that the evidence alleging that a person committed international crimes forty years ago is considered in a suitable manner.
As someone who has spent some time investigating war crimes in Bangladesh (at that time around 25 years old evidence) I know first hand that whilst there is collective memory and belief about who is involved in war crimes, it is tough to find direct eye-witness or documentary evidence. Even when you find an eyewitness, there is always the question of whether you can find sufficient corroboration. And then of course there are the inconsistencies that one so often finds between witnesses, when the alleged offence took place so long ago.
It is not that incriminating evidence cannot be found, but the point is that it is far from straightforward, forty years after the event, to collect evidence that a court can justifiably conclude proves beyond reasonable doubt that a person has committed a crime of genocide or a crime against humanity.
Secondly, fair standards can protect judges from government and societal pressures. Holding war crimes tribunals within the very country where the war crimes took place – particularly when they took place on the scale that they did in 1971 – creates some very particular difficulties.
There are very strong passions within Bangladesh about the guilt or otherwise of the accused, and there are very clear challenges on the part of the Tribunal to ensure that they are untouched by these. There are also challenges for the judges, who are themselves Bangladeshi, and who may understandably on a personal level have strong views about what took place in 1971, to ensure that these play no part in the Tribunal's proceedings.
A proper procedural framework with clear protections for the defence will help establish public confidence throughout the country and abroad that this is the case and that the trials are fair.
Third, a tribunal which deals with 'international crimes' has the potential to impact on international processes of accountability for similar crimes beyond Bangladesh. The Bangladesh tribunal is one of the very first national tribunals (i.e not involving any United Nations judges or assistance) involving war crimes taking place and if done right could impact very positively both in terms of case law and on future policy on dealing with war crimes trials. It could set an important trend in the support of establishing national tribunals rather than the very costly UN supported processes.
Yet, unless the tribunal is seen to reflect understood norms of due process, the very opposite could happen – setting back for a long time the argument that national tribunals can deal with accountability for international crimes that took place in their own jurisdiction.
Fourth, there is a world of people outside Bangladesh who know little about what happened in 1971. The Tribunal provides a real opportunity for the country to tell the world about the nine months of the war. This history will undoubtedly be picked up to some extent by the international media, but ensuring high standards at the tribunal should mean that focus of the media attention abroad is not focused on allegations of inadequate standards, but on the story of 1971 as reflected, one hopes, in the strong evidence given at the tribunal.
Fifth, ensuring proper standards takes the wind out of the arguments deployed by the political groups who support the accused, as well as those of their lawyers, who are busy raising criticisms of the tribunal.
This is particularly significant in this case as all the detained men are members of political parties that are now in the opposition.
Although it would have been better had their detentions been investigation-led, rather than the other way round, information in the public domain at the time of their detention does suggest that the seven accused men held by the tribunal were appropriate people for the tribunal to have focused its attention.
Yet, because all the men belong to opposition parties there are the inevitable claims that the government is using the tribunal to settle political scores. The best response to this is to ensure that the trials standards are beyond dispute.
Finally, high standards are the best way to prevent the Jamaat-e-Islami and the accused supporters from portraying themselves as victims of an unjust process. There is something particularly galling to see the Jamaat-e-islami and the BNP, who are not generally known for their interest in due process and fair trial standards, and who, whilst in government showed no interest in criminal justice reforms, to now be raising this issue so loudly (though of course, this is not to say that the Awami League has been any more consistent on this issue between its period in opposition on the one hand and government on the other.)
These are, I think convincing arguments why all those who have been campaigning for accountability, for an end to impunity for war crimes, for the tribunal to succeed in bringing to justice perpetrators, and for redress to the survivors, should at the same time be seeking high standards for the Tribunal. There is no contradiction between these two positions.
This is of course the same perspective taken by the respected international organisations like Human Rights Watch or Amnesty International who are both very strong supporters of accountability for war crimes, but at the same time are earnest at seeking trials that meet relevant standards.
High standards of fair trial and provision of appropriate protections for the defence should be no threat to those interested in ensuring that the right people are convicted.
David Bergman is Editor, Special Reports of New Age. He, along with the editor and publisher of this newspaper has been asked to explain on 27 November why proceedings should not be initiated against them for contempt of court for a previous article published in this paper.
(See also the Bangladesh Chronicle:
Also read about November 13's hearing and watch out for judgment on November 14. As the Tribunal has been blatantly implementing the Govt's political decisions rather than upholding justice and due process of law and as it has on all occasions turn down the defense's legitimate applications/petitions, it is assumed that this recusal petition will be shamelessly dismissed in defiance of law, due process, justice and fundamental hu7man rights.
RECUSAL PETITION: SUBMISSIONS OF MR. ABDUR RAZZAQ, BARRISTER-AT-LAW (November 13, 2011)
Today, we have conducted hearing of a very important application before the International Crimes Tribunal. In the 200 years history of British India, 25 year history of Pakistan and in the long 40 year history of Bangladesh, no precedent exists of such an application ever being moved.
In order to ensure a fair trial, a Judge has to remain above and beyond all controversy. If a Judge is even remotely involved with the subject matter of the proceedings, then he has to refrain from acting as a Judge in the said proceedings – this is a time honoured principle observed by all Judges.
But for the first time in the history of Bangladesh, we see an exception to this time honoured principle in the proceedings of the International Crimes Tribunal, Dhaka. On 25th March 2010, the Hon'ble President appointed Mr. Justice Nizamul Haque Nasim as Chairman of the International Crimes Tribunal. Earlier in 2001, he was appointed as an Additional Judge of the High Court Division of the Supreme Court of Bangladesh. On 26th March 1993, a so-called People's Inquiry Commission was constituted to conduct an investigation into war crime atrocities committed in 1971. A 40-member Secretariat was also constituted to assist the People's Inquiry Commission in its investigation. Mr. Justice Nizamul Haque Nasim was a member of the Secretariat of the People's Inquiry Commission.
On 26th March 1994, the People's Inquiry Commission submitted its investigation report. As a member of the Secretariat of the Inquiry Commission, Mr. Justice Nasim assisted the Commission in the investigating into allegations of war crimes against Mr. Moulana Motiur Rahman Nizami, Moulana Delwar Hossain Sayedee, Mr. Salahuddin Quader Chowdhury, Mr. Ali Ahsan Md. Mujahid and several other leaders of the BNP and Bangladesh Jamaat-e-Islami.
As a member of the Secretariat of the People's Inquiry Commission, Mr. Justice Nasim was involved in the investigation of war crimes allegations against the aforesaid persons. He was also involved in the process of obtaining statements of witnesses, many of whom are likely appear before the Tribunal to give evidence. In his capacity as a member of the Secretariat, he also recommended that the aforesaid persons be tried for war crimes by the International Crimes Tribunal. In view of Mr. Justice Nasim's direct involvement with the People's Inquiry Commission, he has no right to perform the functions of the Chairman of the International Crimes Tribunal.
During the hearing of the application for recusal, Mr. Abdur Razzaq, Barrister-at-law, Senior Advocate referred to the Constitution of Bangladesh, the Code of Conduct for Judges of the Supreme Court, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the Rome Statute of the International Criminal Court, and submitted: 'Mr. Justice Nasim should resign from the post of Chairman of the International Crimes Tribunal immediately. Failure to resign would be tantamount to violation of the principles of a fair trial. It will be a travesty of justice.'
Mr. Razzaq further submitted that if Mr. Justice Nasim does not resign, this will amount to obstructing the course of justice. 'Mr. Justice Nasim has no constitutional, legal or moral right to remain as Chairman of the Tribunal', he said. 'The sooner he resigns the better'.
Mr. Razzaq also submitted, 'History repeats itself. Perhaps, Supreme Judicial Council proceedings will be instituted against him one day in the interests of a fair trial.'
FALLACY OF JUSTICE: WHEN JUDGE HIMSELF IN CONTROVERSY
Nov 13, 2011Delawar Hossain Sayidee, the most prominent and popular aalim (Islamic scholar) of Bangladesh was arrested along with some top leaders of the country's second largest opposition and the topmost Islamic democratic party – Bangladesh Jamaat Islami (BJI) without any warrant nearly two years ago.
Recently Mr. Delawar Hossain Sayidee, who was two times consecutively elected as the member of parliament (MP), has been charged with war crimes and crimes against humanity of such grave nature like mass killing, rapes of hundreds, forcefully converting hindus to Islam and destruction of private and public properties during the war of 1971. Mr. Sayidee was never alleged of any involvement or association with such unlawful activities all the 40 years after the country's independence from Pakistan until the current government came to power.
Mr. Sayidee has categorically denied all 20 charges against him all of which were concocted by the regime by using all its authorities and political resources during a long time when Mr. Sayidee was unlawfully put under custody with all sort of inhuman tortures and remand applied on him.
As he has been charged for international war crimes and under an international tribunal (International Crimes Tribunal or ICT), he hired some foreign counsels who are expert on war crimes and crimes against humanity and acted as defense counsel in many international tribunals. Toby Cadman is one of such defense counsels hired by Delawar Hossain Sayidee.
However, Toby Cadman was denied entry into Bangladesh by the current regime on the ground that a foreign lawyer cannot represent an accused in a tribunal in Bangladesh although ironically the official name of the tribunal is International Crimes Tribunal (ICT).
This is a gross violation of an accused's fundamental human rights and constitutional rights under the constitution of Bangladesh. As Toby cannot enter Bangladesh, he is remotely advising his client through the other local defense counsels from abroad.
Toby Cadman's remarks along with other observations and suggestions made by International Bar Association, US Ambassador at Large Mr. Rapps and many international human rights organizations such as Amnesty International at international level as well as the major political parties, law experts, civil society and human rights activists with Bangladesh on the substantive law and procedures employed by the ICT adequately demonstrate the clear motif behind this tribunal.
However, the current regime seems to ignore and defy all such comments and observations in the pursuit of its political goals.
Therefore, we would like to urge the international community including the media and civil society to pay due attention and observe the war crimes trial process in Bangladesh in an objective and unbiased manner.
Our concern is that unless the international community takes a close watch there will certainly be obvious blatant violation of human rights, political repression and travesty of justice in the name of this politically motivated trial of war crimes that has surfaced all of sudden during the current regime after the war was over about 40 years ago in 1971.
Attachment(s) from Nirob Dorshok
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