Inconsistencies of International Crimes Tribunal, Bangladesh

Table of Contents
Introduction ………………………………………………………………………………………………………………………………………… 3 Inconsistencies in Law………………………………………………………………………………………………………………………….. 5 1973 Constitution Amendment violated international standard ………………………………………………………………. 5 Loopholes in the International Crimes Tribunal (Amendment) Act, 2009 ………………………………………………… 6 Post Trial Amendment of Law …………………………………………………………………………………………………………… 8 Inconsistencies as to Judges and Court Officers ……………………………………………………………………………………… 10 Skype-gate Scandal ………………………………………………………………………………………………………………………… 10 Judge himself is part of evidence! …………………………………………………………………………………………………….. 12 1. Prior Connection with Subject-matter of Current Proceeding ……………………………………………………….. 13 2. Contrary to Constitution and Code of Conduct for Judges ……………………………………………………………. 14 Resignation of a Judge of the Tribunal………………………………………………………………………………………………. 15 Appointments of ATM Fazle Kabir as Judge and Shawkat as Assistant Registrar because of their particular bias ………………………………………………………………………………………………………………………………………………. 17 Investigation Chief bound to resign after Government Pressure ……………………………………………………………. 17 Undue Influence over Tribunal …………………………………………………………………………………………………………….. 18 Unjustifiable Demands of Shahbagh …………………………………………………………………………………………………. 18 Secret Meeting with the Judges ………………………………………………………………………………………………………… 19 Inconsistencies as to Witnesses ……………………………………………………………………………………………………………. 20 Abduction of Defense Witness from Tribunal Gate …………………………………………………………………………….. 20 False Witness Given under Compulsion ……………………………………………………………………………………………. 22 Contradictory Prosecution Witnesses ………………………………………………………………………………………………… 24 Inconsistencies in Proceedings …………………………………………………………………………………………………………….. 28 Unjust Execution of Abdul Quader Mollah………………………………………………………………………………………… 28 Putting Limit on the Opportunity to Defend ………………………………………………………………………………………. 30 Executive Interference with process of Tribunal …………………………………………………………………………………….. 32 Ministry Prepared Judgment for the Tribunal …………………………………………………………………………………….. 32 Offer of promotion to Tribunal Judges as incentives/rewards ……………………………………………………………….. 33 Executive pressure to deliver verdicts by a certain date and in a certain order ……………………………………….. 35 Govt.‘s influence is clear by Ministers‘ Comment ………………………………………………………………………………. 36 Criticism from experts and HR orgs ……………………………………………………………………………………………………… 38 Stephen J. Rapp ……………………………………………………………………………………………………………………………… 38 Shoddy tribunal has pushed the country to the verge of a civil war : AHRC …………………………………………… 39 IBA on the Legality of War Crimes Tribunal of Bangladesh ………………………………………………………………… 40 Other Mentionable Concerns……………………………………………………………………………………………………………. 42 Recommendation ……………………………………………………………………………………………………………………………….. 45

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Introduction | Inconsistencies of International Crimes Tribunal, Bangladesh

Inconsistencies of International Crimes Tribunal, Bangladesh
Introduction
In 2010 the Bangladesh govt. established International Crimes Tribunal to conduct trial of war crimes committed in 1971, during Bangladesh‘s war of independence from Pakistan. Despite what the name suggests, it is not an international court in the sense of being founded on international law. Rather it is a national court, based on a Bangladeshi statute passed in 1973 and amended in 2009 and 2012. In the following months, Police arrested top leaders of the opposition party Bangladesh Jamaat-e-Islami (BJI). Among them are Ameer of BJI Mawlana Motiur Rahman Nizami, Naib-e-Ameer Mawlana Delwar Hossain Sayedee, Secretary General Ali Ahsan Mujahid, former chief of Jamaat Professor Ghulam Azam, top leaders Abdul Qader Molla, Mohammad Qamaruzzaman and Mir Qasem Ali who are detained till date for the alleged war crimes. The main perpetrators of the crime are not tried in the Tribunal as they were already handed over to Pakistan by the Bangladesh govt. in 1974. The government had promised to meet international standards in these trials, but it has been far away from meeting this commitment. Unfortunately the present trial of war crime has been severely criticised by various institutions as biased and targeted to have political vengeance rather than securing justice. The law governing this trial is very controversial and it fails to meet internationally recognised norms of human rights and procedural fairness.1 International community has also been vocal about the political nature of the trial resulting in serious bias against the defence, including admitting witness statement without producing them for cross-examination, not taking any action against the perjury of the prosecution, abducting defence witnesses from the tribunal gate,2 harassment of the defence counsels,3 and consistent denial of almost every defence application by the tribunal. Among the other

1

http://www.hrw.org/news/2011/07/11/bangladesh-guarantee-fair-trials-independence-era-crimes

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Introduction | Inconsistencies of International Crimes Tribunal, Bangladesh

concerns regarding fairness of these trials are secret collusion a judge with outsiders, the courts compulsive judgement of death sentence amid pressure created by protesters and the Prime Minister and the unprecedented application of retroactive criminal law in order to increase punishment of an accused. Now the truth has been exposed about the so-called war crime tribunal in Bangladesh. From the independent reporting of the newspapers of Bangladesh including international media like the Economist, the following true facts about the Tribunal have already been proven beyond reasonable doubt: 1. The Government has appointed only the judges who were active members of its own party. 2. The Government has actively interfered in the proceedings of the Tribunal since day one. 3. The Government promised judges promotions if the verdicts were given against the opposition leaders. 4. The judges of the Tribunal regularly held secret meetings with the Government ministers on how to reach a verdict. 5. The judges and the prosecution team secretly met numerous times on how to rig the proceedings and how to help the prosecution case. 6. The judges dismissed all the preliminary motions of the defense without even reading any of them 7. The judges conspired with Government supporters on how to draft a judgment before the defense team even started its argument. This report is designed to show the serious and much-talked inconsistencies of the tribunal with specific reference thereto.

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Introduction | Inconsistencies of International Crimes Tribunal, Bangladesh

Inconsistencies in Law
1973 Constitution Amendment violated international standard
For the purpose of war crime trial, the Constitution was amended in 1973 and thereby the fundamental rights of the suspects of war crime had been withdrawn. Article 47(3) was introduced into the Constitution in 1973 and provided that members of armed, defence or auxiliary forces or prisoners of war detained or charged under anuy law or provision with genocide, crimes against humanity, war crimes or other cries of international law which was inconsistent or repugnant to the Constitution, those laws or provisions could not be challenged as being void or unlawful. This amendment had the effect of withdrawing constitutional rights from a particular group of people within Bangladesh society who were not even convicted but at the most were only suspected of such crimes. Under newly introduced Constitution Article 47A(1) other guaranteed constitutional rights were also explicitly withdrawn from such people. These were the rights given to every citizen of the protection of the law; the universal right of nullem crimen sine lege (no came without there being a law; and the right to an expeditious trial by an independent and impartial court or tribunal. By new Article 47A(2) these persons were also specifically denied the right to seek remedies available under the Constitution from the Supreme Court of Bangladesh. The overall effect of these measures was to put persons questioned, detained, suspected of committing crimes or charged with crimes within the International Crimes (Tribunal) Act 1973 outside the norms of the national legal system. For the first time inequality had been introduced into the Bangladesh justice system.

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Inconsistencies in Law | Inconsistencies of International Crimes Tribunal, Bangladesh

Such amendment was directly against the spirit of international treaties to which Bangladesh became party. Bangladesh ratified the Treaty of Rome 2 and thereby became a State party member of the international Criminal court. the Statute and Rules of Procedure and Evidence for the ICC contain modern and internationally recognized principles that form the norms for the trial of international crimes with which Bangladesh is concerned in its national jurisdiction. On 6 September 2000 the Govt. of Bangladesh acceded to ICCPR by which it agreed to uphold universal principles for the fairness of criminal trials within its national jurisdiction.3 It is apparent that the amendments made to the Constitution in 1973 are in contradiction with those principles with those principles adopted by the State of Bangladesh and should now provide an opportunity for a declaration by the Supreme Court as to the unlawfulness of those amendments.

Loopholes in the International Crimes Tribunal (Amendment) Act, 2009
Before initiation of the trial of opposition top leaders after 38 years of independence, the law of 1973 has been again amended and the very amendment has offered less opportunity to

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on 27 March, 2010 14.1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law…. 14.2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. 14.3(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; 14.3. (g) Not to be compelled to testify against himself or to confess guilt. By Article 15.1 . No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby. 15.2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations. By Article 26: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

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Inconsistencies in Law | Inconsistencies of International Crimes Tribunal, Bangladesh

defence and unfair advantage for prosecution. Let‘s see the loopholes of the International Crimes Tribunal (Amended) Act, 1973 in the following in a nutshell: 1. Section 6(8) of the ICTAA 2009 provides that neither the Prosecution nor the Defence may challenge the judges appointed to try a case. That means conflicts of interest or bias or prejudice or bad behavior of any judge may not be raised by the parties in order to challenge the fairness and impartiality of the trial. This provision is contradictory with Article 35(3)4 of Bangladesh Constitution which gives right to be tried by an independent and impartial court or tribunal. 2. The lack of right to challenge and inability to request the Tribunal to be accountable for its conduct can also be seen in ICTAA 2009 section 10(h).5 A party may have good grounds for objection to the conduct or action of the Tribunal which may be unfair. But under this provision this right has been swept away. 3. Section 8.56 of the ICTAA is in conflict with the international principle of protection from self-incrimination which is linked with presumption of innocence. This safeguard is to prevent investigators from forcing information from people detained and questioned by them. Section 161(2), of the Code of Criminal Procedure provides for protection against self-incrimination within the national criminal law of Bangladesh and this is an example of divergent standard of justice. But the said section of ICTAA restricts the effect of such questioning to the provision of information.

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This right is in accordance with Article 14.1 of ICCPR and Article 10 of UDHR also. The tribunal may, in order to discover or obtain proof of relevant facts, ask any witness any question it pleases, in any form and at any time about any fact; any may order production of any document or thing or summon any witness, and neither the prosecution nor the defence shall be entitled either to make any objection to any such question or order or, without the leave of the Tribunal, to cross-examine any witness upon any answer given in reply to any such question. 6 Such person shall be bound to answer all questions put to him by an Investigation Officer and shall not be executed from answering any question on the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such person. Provided that no such answer, which a person shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding.

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Inconsistencies in Law | Inconsistencies of International Crimes Tribunal, Bangladesh

4. As per section 9(3) of the Act, the International Crimes Tribunal dealing with war crimes would start trial after three weeks of its framing formal charges against the accused. This meantime is very short for the preparation of the defence lawyers.

Post Trial Amendment of Law
In its second verdict, announced on February 5, 2013 the ICT convicted Kader Mollah, a leading member of Jamaat, on five out of six counts and sentenced him to life in prison. He was acquitted on one count of murder. Government officials, members of the ruling Awami League party, and Shahbagh protesters reacted with outrage that Mollah was not sentenced to death. But under section 21 of the International Crimes (Tribunal) Act 1973, the prosecution can appeal against an acquittal order, not against a sentence. So the Govt. could not apply for a death sentence of Kader Mollah under existing law. The government responded to the mob demands by proposing amendments to the ICT law, allowing the prosecution to appeal the sentence, and decreasing the time for an appeal to be completed. On February 14, the draft amendment was offered in parliament and was approved on February 17. Until this verdict, the prosecution was only allowed to appeal if the accused was acquitted, and 90 days were allowed for appeals. Section 21 was substituted by section 3 of the International Crimes (Tribunals) (Amendment) Act, 2013 (Act No. III of 2013) and the new section is amended as follows: 21. (1) A person convicted of any crime specified in section 3 and sentenced by a Tribunal may appeal, as of right, to the Appellate Division of the Supreme Court of Bangladesh against such conviction and sentence.7

7

http://bdlaws.minlaw.gov.bd/print_sections.php?id=435&vol=&sections_id=12497

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The amendment, though passed on 17th February 2013, was given effect from 14th July, 2009, the day the trials of war crime had begun. So it is a retrospective criminal legislation specifically made in order to meet the illegal demands of the Shahbagh protesters for death sentence of Kader Mollah. The government has preferred an appeal to the Appellate Division of Supreme Court of Bangladesh against acquittal of Kader Mollah in relation to one offense; and sentences of imprisonment in relation to five offences for which Mollah was convicted. On the other hand, an appeal from Kader Mollah has sought an acquittal on all charges. During the appeal, the Appellate Division has asked the prosecution to present a single precedent in the whole world where changed law was made applicable to an accused after the passing of the sentence. The prosecution could not come up with a single precedent or authority in reply to this query of the court, yet they kept claiming that the amended article was applicable to Kader Mollah. Justice Abdul Owahab Mia pointed out that it is mentioned in the section that the trial of proceeding is going on. This is the most important and serious. It is proved that it is not applicable for Abdul Quader Mullah.8 The amended article goes against the spirit of the constitution of Bangladesh. 9 It also violates the International Covenant on Civil and Political Rights (ICCPR), to which Bangladesh is a state party.10 The retroactive legislation that violates fair trial standards undermines the legitimacy of the work of Bangladesh‘s International Crimes Tribunal (ICT). The amendments were offered to enable an appeals court to overturn a life sentence imposed on Abdul Qader Mollah and impose the death penalty amid demands of supporters of the ruling party. International

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http://www.jamaat-e-islami.org/en/newsdetails.php?nid=OTIx Under the constitution of Bangladesh, it is illegal to punish a person under any retroactive law. Article 35(1) of the Constitution states that: no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than, or different from, that which might have been inflicted under the law in force at the time of the commission of the offence. See Article 35, Constitution of Bangladesh, http://bdlaws.minlaw.gov.bd/sections_detail.php?id=367&sections_id=24583 10 Article 14 of the ICCPR states that ―no one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with th e law and penal procedure of each country.‖ See Article 14 of the ICCPR 1966

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organisations have been vocal about the violation of human rights caused by imposing retroactive criminal law Kader Mollah.11

Inconsistencies as to Judges and Court Officers
Skype-gate Scandal
The Chairman of the International Crimes Tribunal would regularly talk over internet with a Brussels based lawyers with matters relating to the trial. The conversations were published in various media including the London based ‗the Economist‘. The communications reveal a secret collusion taking place between private individuals and the former Chair of this Tribunal, Justice Nizamul Huq Nasim. The files show how Mr. Nasim was bypassing due process and the rule of law by colluding with Ahmed Ziauddin based in Brussels and Rayhan Rashid in Oxford. Many court documents including the final formal charge and draft

judgement of Sayedee case were prepared by Ziauddin and the former tribunal chairman did not perform his judicial work independently. On 11 December 2012 the Judge in question resigned amid controversy,12 but on 2 January 2013, the International Crimes Tribunal 1 has rejected all the defence applications for the retrial of the cases.13 During the trial, the Chairman of the Tribunal Justice Nizamul Haq had been discussing the matters of the trial with Ahmed Ziauddin by emails and online conversations using Skype. The conversations have raised serious concerns of a miscarriage of justice affecting the

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Human Rights Watch has said in a statement that a government supposedly guided by the rule of law cannot simply pass retroactive laws to overrule court decisions when it doesn‘t like them. The Bangladesh government should pause, take a deep breath, and repeal the proposed amendments, which make a mockery of the trial process.‖ ―Instead of explaining to the public that the separation of powers and the rule of law mean accepting the decision of the courts, the government has now directly intervened in the trial process,‖ Adams said. ―Convictions of those responsible for the 1971 atrocities is important for the country, but not at the expense of the principles that make Banglades h a democracy.‖ Amnesty International also condemned this move. See http://www.amnesty.org/en/library/asset/ASA13/003/2013/en/ebddb9c9-b5ea-418b-9b900ab53c8c51bc/asa130032013en.html 12 http://www.thedailystar.net/newDesign/news-details.php?nid=260836 13 http://www.thedailystar.net/newDesign/news-details.php?nid=263749

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Inconsistencies as to Judges and Court Officers | Inconsistencies of International Crimes Tribunal, Bangladesh

individual defendants and flawed process of the tribunal. 17 hours of recorded conversations and over 230 e-mails between the two men eventually got leaked in the internet 14 which cast serious allegation regarding the court proceedings and his role as a judge. The communications show Justice Nasim worked improperly with Mr. Ahmed, who has been co-operating with the prosecution also. And in Mr Sayeedi‘s case it points to the possibility that, even before the court had finished hearing testimony from the defence witnesses, Mr Nizamul was already expecting a guilty verdict.15 The Tribunal was not free and independent from the executive branch of the state which violates the principle of separation of power. One of the conversations suggests the tribunal came under political pressure to speed proceedings up, even though Bangladesh guarantees the independence of the judiciary. In a conversation of October 14th, between Mr Nizamul and Ahmed Ziauddin, the judge refers to the government as ―absolutely crazy for a judgment. The government has gone totally mad. They have gone completely mad, I am telling you. They want a judgment by 16th December…it‘s as simple as that.‖16 On November 8th 2011 Mr. Ziauddin e-mailed Mr Nizamul a list of matters raised by a defence petition that the judge recuse himself from the trial. The first five items on the list are materials and documents that, the e-mail says, were to be supplied to Mr Nizamul by Zead-alMalum, one of the top prosecutors at the tribunal.17 This showed that, the prosecutor is being asked to help by someone who is also advising the judge. International Crimes Tribunal Judges were not in a position to exercise judicial power independently according to dictates

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See www.bdictunveiled.com http://www.economist.com/news/briefing/21568349-week-chairman-bangladeshs-international-crimestribunal-resigned-we-explain 16 http://www.economist.com/news/briefing/21568349-week-chairman-bangladeshs-international-crimestribunal-resigned-we-explain?zid=306&ah=1b164dbd43b0cb27ba0d4c3b12a5e227 17 http://www.economist.com/news/briefing/21568349-week-chairman-bangladeshs-international-crimestribunal-resigned-we-explain?zid=306&ah=1b164dbd43b0cb27ba0d4c3b12a5e227

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Inconsistencies as to Judges and Court Officers | Inconsistencies of International Crimes Tribunal, Bangladesh

of law and justice. As the conversation shows, a new judge Mr. Jahangir was told only to say yes to whatever the Chaiman says in the court. Nasim: No, there will be no problem. Because he (Mr. Jahangir) has been told, whatever the Chairman says, you just say ‗Yes‘.18 On December 12, 2012 Justice Nizamul Huq Nasim resigned from the International Crimes Tribunal over his improper communications with Mr. Ahmed in judicial capacity.

Judge himself is part of evidence!
Since the country is a state party to many International Convntions like UDHR, ICCPR and ICC, it must therefore adhere to its international obligations to ensure a fair and impartial trial whose judges will be above all questions of impartiality. But for the first time in the history of Bangladesh, an exception to this time honored principle has been occurred in the proceedings of the International Crimes Tribunal, Bangladesh when it has seen Justice Nasim as its Chairman who is alleged to be incompetent to dispose the trial for his former connection with the investigation of same case. With many criticism of this trial, this new one added a serious concern about the impartiality of the Tribunal which is very fundamental for ensuring justice in its true sense. The defense Lawyers filed two petitions19 for the recusal of Justice Nizamul Huq Nasim, but the Trial rejected the both with eye-washing reasoning. The impartiality of Justice Nasim can reasonably be questioned for the following reasons:

18 19

www.dailysangram.com/news_details.php?news_id=103812 The first petition was filed on October 27, 2011 and the second was on November 16, 2011

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Inconsistencies as to Judges and Court Officers | Inconsistencies of International Crimes Tribunal, Bangladesh

1. Prior Connection with Subject-matter of Current Proceeding

On 26th March 1993, a so-called People‘s Inquiry Commission was constituted to conduct an investigation into war crime atrocities committed in 1971. On 26th March 1994, the People‘s Inquiry Commission submitted its investigation report. The Report reveals the following: (a) The identification of the Chairman of the Bangladesh International Crimes Tribunal Judge Nizamul Huq Nasim as a lawyer at the time of the Secretariat of the People‘s Commission, listed in Appendix B; (b) That the accused of the current trial before the ICT, 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 are named by the People‘s Commission in the same Report as a war criminal and are accused of many murders and other crimes in the 1971 liberation war; (c) The Report states: ―A 40 member Secretariat consisting mainly of lawyers, journalists and writers was formed to assist the Commission with its task‖ which was the investigation of the crimes for the People‘s Inquiry and ―The Commission analysed all the evidence gathered by members of the Secretariat.‖ So, it‘s clear that, 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. Furthermore Mr. Justice Nasim attended and spoke at a meeting demanding the implementation of the verdict

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Inconsistencies as to Judges and Court Officers | Inconsistencies of International Crimes Tribunal, Bangladesh

of the Gono Adalat, i.e., the hanging of Professor Ghulam Azam.20 In vantage point of Mr. Justice Nasim‘s direct involvement with the People‘s Inquiry Commission and his interest in the subject-matter of current proceeding, he had no right to perform the functions of the Chairman of the ICT.
2. Contrary to Constitution and Code of Conduct for Judges

The activities of Mr. Justice Md. Nizamul Huq have eroded his credibility and threatened the integrity and independence of the International Crimes Tribunal, contrary to the provisions of the Constitution of Bangladesh as well as to the Code of Conduct. Article 96(4)(a) of the Constitution provides for a Code of Conduct 21 to be prescribed by the Supreme Judicial Council and which is to be observed by judges. It stipulates that any act which erodes the credibility and independence has to be avoided. Some relevant clauses of that code is worth mentioning here: 1. A judge should uphold the integrity and independence of the judiciary. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.22 2. A judge should avoid impropriety and the appearance of impropriety in all activities. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”23

20 21 22 23

This has been reported in the Daily Sangbad on 11th April 1992. published on 7 May 2000 Clause 1 of the Code of Conduct Clause 2 of the Code of Conduct

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Inconsistencies as to Judges and Court Officers | Inconsistencies of International Crimes Tribunal, Bangladesh

3. The judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.”24 4. a judge should disqualify himself if he “is .. likely to be a material witness in the proceeding”.25 That Constitution of Bangladesh provides for an oath to be taken by members of the superior Judiciary. According to the Third Schedule of the Constitution a judge will solemnly swear or affirm that he will: “faithfully discharge the duties of [his] office according to law: That [he] will bear true faith and allegiance to Bangladesh: That [he] will preserve, protect and defend the Constitution and the laws of Bangladesh: And that [he] will do right to all manner of people according to law, without fear of favour, affection or ill-will.”26

Resignation of a Judge of the Tribunal
Zaheer Ahmed, a retired district judge, who was appointed as a judge to the tribunal on 25 March, 2010 when the tribunal-1 was

constituted, resigned on 28 August 2012. Defense counsel Advocate Tajul Islam claimed

24 25 26

Clause 3(6)(A) of the Code of Conduct clause 3(6)(d)(iv) of the Code of Conduct Article 148 of the Constitution of Bangladesh

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Inconsistencies as to Judges and Court Officers | Inconsistencies of International Crimes Tribunal, Bangladesh

that the judge might have been forced to resign by the law ministry and the prosecution, as the prosecution seemed unhappy with him in the courtroom for his strong position against undue and illegal demands of the prosecution.27 However, the Judge expressly stated his different views in several phases of the Trial procedure. Sometimes, he differed with the other two members on the Judges Panel in deciding matters. Many expressed their views that this might be a result of prolonged disagreement and dissatisfaction among the Judges and the Law Ministry as well as the Govt. might play a vital role behind this resignation. Generally, the Judges are appointed by President, so their resignation is supposed to be submitted to the President as well; however, this resignation was sent and accepted by the Ministry of Law, which raised a vital question.28 The appointment of a controversial judge named Jahangir Hoassain replacing Mr. Zahir made the scene more blurred. However, he was appointed as the District Judge of Dhaka by superseding more than 200 other judges in the Seniority list on 2009, just after the Awami League Govt. came to the power. He was widely criticized in the media for such appointment and many recognized this as a partisan attitude to manipulate the Judiciary. It was later revealed by the leaked Skype conversation between Justice Nizamul Huq, Chairman of Tribunal-1 and Ahmed Ziauddin, an expatriate Bangladesh lawyer, that Judge Mr. A.K.M Zaheer Ahmed had been removed from the Tribunal at the behest of the Law Minister. Justice Huq stated that the Law Minister had summoned Mr. Zaheer Ahmed to his residence on the evening of 26th August 2012 and had asked him to resign and further that the Law Minister had assured Mr. Zaheer Ahmed of a compensatory appointment in the Law Commission.29

27 28

The Daily NayaDiganta – 29th August, 2013 ibid 29 (Audio Conversation of 28th August 2012 may be accessed from the archive available at

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Inconsistencies as to Judges and Court Officers | Inconsistencies of International Crimes Tribunal, Bangladesh

Appointments of ATM Fazle Kabir as Judge and Shawkat as Assistant Registrar because of their particular bias
On 6th September 2012, Ziauddin, over skpye, expressed his satisfaction, in a conversation with Justice Huq, that Justice Kabir (the former Chairman of Tribunal-2 and the newly appointed Chairman of Tribunal-1) will make statements/take decisions on political considerations.30 Another conversation between Justice Huq and Ziauddin on 1st September 2012 Clearly shows that the administrative functionaries of the Tribunal are political appointees. The two men discuss how the new Assistant Registrar, Shawkat had been involved beforehand with ICSF13 and that he was considered as reliable by them.31

Investigation Chief bound to resign after Government Pressure
With the formation of Tribunal-1, a seven-member investigation agency was also constituted with Abdul Motin, a former additional secretary to the government, as chief. Prime

minister‘s advisor Dr. Alauddin Ahmed made an allegation regarding Motin‘s involvement in student and service life. Amir Hossain Amu, a member of the Advisors of ruling Awami league, also supported the allegation. Mohiuddin Khan Alomgir, a presidium member of Awami league and present Minister for Home Affairs had told, ‗Motin‘s issue will be decided in high command of the government‘. After receiving huge internal pressure from the government policy makers, Motin was bound to resign, later that was admitted by then Home

http://www.tribunalsleaks.be/index.php/documentation/archive/audioarchive – Relevant excerpts of the audio at 03.30-04.25) 30 (Reported in the Daily Amar Desh on 9 December, 2012.) 31 (Audio Conversation of 1st September 2012 may be accessed from the archive available at http://www.tribunalsleaks.be/index.php/documentation/archive/audioarchive – Relevant excerpts of the audio at 03.1505.25).

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Inconsistencies as to Judges and Court Officers | Inconsistencies of International Crimes Tribunal, Bangladesh

Minister Advocate Sahara Khatun. But Law Minister Shafique Ahmed had said, ‗there was ‗nothing wrong‘ in Motin‘s Appointment and resignation‘.32

Undue Influence over Tribunal
Unjustifiable Demands of Shahbagh
On February 5, 2013, after the International Crimes Tribunal sentenced Abdul Quader Mollah to life, a sit in movement in Shahbagh began on that day demanding capital punishment for Abdul Quader Mollah and other leaders of Jamaat-e-Islami for alleged crimes against humanity during the 1971 Bangladesh Liberation War. The protesters called the sentence too lenient, so they started protests and demonstrations and demanded the death penalty for Mollah as the only acceptable punishment. Later the demands widened to ban the Bangladesh Jamaat-e-Islami party and other religious based parties from politics. Members of the ruling party led by Dr. Imran H Sarkar joined the protest and took control of it. Shahbagh protesters demanded the death penalty for all accused in ICT regardless the merit of cases. This put the Tribunal under a great pressure. The Shahbagh leaders vowed to ensure the death penalty of detained Jamaat leaders, banning religion based politics, forfeiting the citizenship of Jamaat supporters and

boycotting institutions and press that belong to the opposition.33

32 33

Daily News Today, 7/5/2010 http://www.thedailystar.net/newDesign/news-details.php?nid=268449

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It is the right of every accused person that they should be tried according to the law and the evidence presented before the court. Only the punishment determined by dictates of justice based on proven facts can be imposed on a convicted person. But the Shahbagh movement unjustifiably demanded death penalty for all accused persons irrespective of merit of the cases. The demand is a direct threat to the independence of judiciary as it puts the judges under a great pressure to deliver the judgment acceptable to protesting mobs.

Secret Meeting with the Judges
Shahriar Kabir, President of the Ekattorer Ghatok Dalal Nirmul Committee and journalist Shahin Reza Nur (son of martyred journo Shahid Sirazuddin Ahmed) had visited the Tribunal-2 of the ICTB and had a closed door meeting with the Judges of the Tribunal. 34 The subject matter was not disclosed to media or anyone. However, both of them are the Witness for prosecution in the case of Ali Ahsan Muzahid, Secretary General of Jamaat-e-Islami which is running in this very Tribunal. The Defense Team filed a petition challenging the meeting and argued that the Judges should refrain from conducting the case, as their impartiality can be questioned now.35 The Tribunal rejected the petition on the ground that, this meeting will not affect the normal procedure of the Tribunal, as they visited the Tribunal as the family members of martyrs of 1971 and only talked about the security problems and infrastructures of the Tribunal complex.36 However, Barrister Razzak, Chief Defense Counsel argued that, ―Tribunal won‘t allow anyone from Defense Team to talk like this about those issues. Furthermore, the two witnesses had a press conference after visiting the Tribunal and expressed their hope that the

34 35

http://www.prothom-alo.com/detail/date/2012-08-27/news/284301 The Daily NayaDiganta – 28th August, 2013 36 http://www.prothom-alo.com/detail/date/2012-08-27/news/284301

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Undue Influence over Tribunal | Inconsistencies of International Crimes Tribunal, Bangladesh

Trial of the 10 alleged persons would be concluded within 2013. Such statement went to affect the procedure of the Trial.‖37 In a subsequent conversation on 1st September, Justice Huq said that he had advised Mr. Zaheer Ahmed to tell everyone that he had resigned on medical grounds. 38 On 1 September, the Skype conversation of Justice Huq reveals the following about his instructions to Mr. Zaheer Ahmed: Justice Huq: I told him [Mr. A.K.M Zaheer Ahmed] ‗you will not talk to anyone about anything. You will simply say you resigned for medical reasons. You will not say anything else‘. If he uses the language he used with me then we will have problems. He will also lose his job offer [at the Law Commission].

Inconsistencies as to Witnesses
Abduction of Defense Witness from Tribunal Gate
Shukh Ranjan Bali’s name was on the list of 68 prosecution witnesses who were supposed to testify on behalf of the prosecution against Delwar Hossain Sayedee. In the end, however, the prosecution only presented 20 of these witnesses to the tribunal. Bali, had agreed to testify for the defense, in the case of Delwar Hossain Sayedee at the International Crimes

37 38

The Daily Sangram – 28th August, 2013 (Audio Conversation of 1st September 2012 may be accessed from the archive available at http://www.tribunalsleaks.be/index.php/documentation/archive/audioarchive- Relevant excerpts of the audio at 07.05-08.00).

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Inconsistencies as to Witnesses | Inconsistencies of International Crimes Tribunal, Bangladesh

Tribunal (ICT). On 5th October, he was then taken to the tribunal in the defense lawyers‘ white microbus. When the microbus arrived at the entrance of the tribunal at around 10 minutes past ten this is about twenty minutes before the start of the tribunal – the car was stopped and the police said that everyone other other than Mizanul Islam (defense laywer) and the driver, should leave the vehicle. The three lawyers and Bali then got out of the vehicle which then went into the court grounds.39 The police detectives who were on the gate insisted that Bali come with them. Bali and the defense counsel both argued that Bali was a witness due to appear before the court later that day. A white van marked ―Police‖ then allegedly drove up from inside the tribunal premises. Several defense lawyers present said that 10 to 12 uniformed regular police were at the gates of the tribunal at the time. The defense team alleges that officers slapped Bali several times around the face and head, and forced him into the van. The van then drove off. Immediately after the alleged abduction, defense lawyers told the trial chamber in the Sayedee case what had happened. They offered some photos of abduction as well. The court ordered the prosecution, but not the police, to investigate the claim and accepted the prosecution‘s response a few hours later that the entire episode had been fabricated by the defense.40 On 8 November, three days after the alleged abduction, the prosecution held a press conference and termed the entire episode as ‗so-called drama of kidnapping‘.41 On November 11 the attorney general testified before the High Court on a writ of habeas corpus that the abduction claim had been fabricated by the defense to bring the tribunal into disrepute, but offered no evidence of a serious police investigation or other grounds for this conclusion. A

39 40

http://bangladeshwarcrimes.blogspot.com/2012/11/abduction-of-defense-witness-outside.html http://www.hrw.org/news/2013/01/16/bangladesh-find-abducted-witness 41 http://bangladeshwarcrimes.blogspot.com/2012/11/tribunal-prosecution-and-registrar.html

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Inconsistencies as to Witnesses | Inconsistencies of International Crimes Tribunal, Bangladesh

defense application for review is still pending before the appellate court. It remains unclear whether any action has been taken to investigate what happened to Bali. The daily New Age, a leading national daily in a report on May 16, 2012 first reveled that Sukharanjan had been ‗abducted from the court premises in a police van and was taken to an office in Dhaka‘ where he remained in illegal detention for six weeks before being handed over to India‘s Border Security Force near the end of December 2012. Sukharanjan had been detained in different Indian jails for four months and a half before he was being held in Dum Dum Correctional Home in Kolkata. After expiry of his detention, he pleaded in the Supreme Court in India not to deport him to Bangladesh. Bali told the court that in Bangladesh Sheikh Hasina‘s government would eliminate him as he had turned hostile during an ongoing trial on the 1971 war crimes, Kolkata-based Indian daily newspaper The Telegraph said.42 The international human rights organisations expressed great concern as to the abducted defence witness.43

False Witness Given under Compulsion
Shamsul Hoque Nannu was the 11th prosecution witness in the case of Motiur Rahman Nizami, the top leader of Jamaat-e-Islami. In his testimony presented at the hearing at

International Crimes Tribunal-1 on June 20th 2013, Mr. Nannu had testified that, Pakistani Raider Forces surrounded 3 villages Ruposhi,

42 43

http://newagebd.com/detail.php?date=2013-08-04&nid=59862 Human Rights Watch statement in this regard: http://www.hrw.org/news/2012/11/13/bangladesh-investigate-allegedabduction-war-crimes-witness

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Inconsistencies as to Witnesses | Inconsistencies of International Crimes Tribunal, Bangladesh

Baushgari and Demra with the help of the accused Motiur Rahman Nizami and carried out the mass murder. More than 450 person were killed from those 3 village. ―I have seen that genocide with my own eyes on that day.44 But in a video interview circulated in the internet on 20 September 2013 45 , Mr. Nannu admitted that the testimony he gave at the Tribunal was given under direct threat and pressure from the government. Mr. Nannu went on to describe that a syndicate of 4-5 people including himself, has been formed under direct authority of the intelligence agency DGFI. The members of this syndicate were forced to give false testimony against Nizami, under different threats targeting their families and using temptations. Likewise, Mr. Nannu was named as accused in 5 cases filed by the government in order to put pressure on him. He has named the minister of state for home affairs, Shamsul Haque Tuku and Prime Minister Sheikh Hasina herself responsible for making sure that he gives testimony against Nizami. Advocate Nannu quoted that, on 4th of the month, the Prime Minister gave him audience and said that he have to be a witness on this case. She said that If you give your testimony, I‘ll look after your well being and evaluate you.46 In the film, ‘Nannu’ said he and his family had been threatened and that he had been offered a large interest free loan to be a witness against Motiur Rahman Nizami. Nannu said, besides there is an involvement of the armed forces, an intelligence branch of the military under the command of Lt. Gen. Imrul Kaes, who is known to be the right hand of Prime Minister Sheikh Hasina is handling the matter. Imrul Kaes would be made the next Chief of Army Staff.47 He said that his son has got a Bangladesh Civil Service job as ASP but he has been deprived. Then Nannu had to come to an understanding with the State Minister for Home
44

http://www.banglanews24.com/detailsnews.php?nssl=a58a45da9b13a0fc3d870ff8e5d59276&nttl=20062013205 352 45 http://www.youtube.com/watch?v=I5U5HyIAoQI 46 http://www.youtube.com/watch?v=I5U5HyIAoQI 47 http://www.english.rtnn.net//newsdetail/detail/1/1/55338#.Ul7gwhC_hH0

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Inconsistencies as to Witnesses | Inconsistencies of International Crimes Tribunal, Bangladesh

Affairs, Tuku. ―You are a freedom fighter. So give witness against Nizami as per my direction‖ Tuku was quoted as saying. ―Your son will remain in the job, otherwise his name will be eliminated through police investigation.‖48 Nannu said, ―they would pick me by a van, rehearse me and I have to tell what I am taught. Otherwise RAB would force me to disappear. Moreover they threatened me to arrest and involve with cases, if I say anything beyond their direction.‖ Nannu said, ―The view I got by talking with Hasina is that she is desperate to come back into power, even if it requires killing people in numbers.‖ According to Nannu, Tuku has a private force like Hitler‗s fifth regiment inside the RAB that picks anyone anytime. Nannu said, ―do you know why I am getting frightened of these devils? They are not human beings. They can kill anyone unless they are obeyed.‖

Contradictory Prosecution Witnesses
The evidence given by the prosecution witnesses and the examination thereof revealed the fabulousness of the case filed against opposition leaders. The statements of the prosecution witnesses were proved false and contradictory. Moreover, these witnesses concealed many affordable information with deliberation. Some surprising points that were almost common to all are: a) Most of them had been accused and later convicted in the criminal cases like theft, dowry, murder etc. For example, Mahbubul Alam Hawladar, the number one witness in the case against Delwar Hossain Sayeedi had been imprisoned in the case of theft and dowry. Md. Sultan Uddin Hawladar, the 4th prosecution witness had been accused of 3 cases including a case of stealing banana and trawler. Abdul Jalil

48

http://www.dailysangram.com/news_details.php?news_id=129255

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Inconsistencies as to Witnesses | Inconsistencies of International Crimes Tribunal, Bangladesh

Sheikh, the 11th P.W. against Sayedee case attempted to murder his second wife, Golenur Begum by cutting her throat with knife. On 14/11/ 1991, his mother-in-law Motijan Bibi filed a case against him under sections 307 and 326 of the Penal Code, 1866. That‘s why he had been imprisoned for seven months.

25

Inconsistencies as to Witnesses | Inconsistencies of International Crimes Tribunal, Bangladesh

b) Most of them got the certificate of freedom-fighter after this ruling Govt. took power or have been beneficiary of different financial project of current Govt. For example, Ruhul Amin, the 2nd P.W. claimed himself a freedom-fighter, but he couldn‘t remember any name of Razakar, Al Badar or Peace Committee members. Sultan Uddin Hawladar , the 4th P.W. against Sayeedi admitted, he is not a freedom fighter. But, the defence lawyers pressed a D.O. letter before tribunal that has been issued in his favor by AKMA Abdul Awal (lawmaker from ruling party) declaring him a freedom fighter. The letter had been issued on 13 September, 2010. After the current Govt. took power,
The DO letter issued by AKAM Abdul Awal to Sutan Uddin Hawladar

Mofiz Uddin Pasari, the 7th P.W. against Sayeedi applied to authority for being listed as freedom-fighter thouth he is not a freedom fighter in fact. The MP of Pirojpur Sadar and the General Secretary of Awami League AKMA Awal issued D.O. letter to him and in pursuance, he has been listed as freedom-fighter. The lawyers of Sayeedi informed the Tribunal that Mr. Mofiz is giving evidence here in lieu of taking benefit from Govt. In cross-examination, he also admitted that, he has been receiving adult allowance for last 2/3 months. Manik Pasari, the 6th P.W. against Sayeedi admitted that he is not a freedom-fighter. But in 2010, current lawmaker AKMA Abdul Awal issued DO letter in his favor and thereby he has been enlisted in the freedom-fighter list. Abdul Jalil Sheikh, P.W.11 had applied, after the ruling Govt. ascended power, for being admitted in this list of freedom fighters. He has been receiving the benefit of the Govt. project named ‗a house, a farm‘.

26

Inconsistencies as to Witnesses | Inconsistencies of International Crimes Tribunal, Bangladesh

c) Most of them didn‘t see the fact for that they appeared before tribunal as witness. For example, As per the evidence of P.W.1 against Sayeedi, Mr. Sayeedi had plundered and burned many house. But he admitted, none of the facts was seen by him. He only heard of them from people and hearsay. He claimed, more than 50 times he had gone to Sundarban Freedom-Fighter Camp, but he couldn‘t remember where it was exactly situated. P.W.2 claimed himself a freedom-fighter, but couldn‘t remember any name of Razakar, Al Badar or Peace Committee members. During giving evidence on 4 January, Mr. Altaf, P.W.9 mentioned, in addition to Sayeedi, the names of many Razakars, leaders of Peace Committee who plundered and burned Parerhat Bazar of Pirojpur. But, on 5 January, 2011 being asked by defence lawyer to mention some Razakar names, he couldn‘t say any name. Only by a day, he totally forgot the names that he mentioned on the previous day! Basu Dev Mistry, P.W.10 had been asked that, ―On 26 March, 1971, the liberation war started. Do you know it?‖ he replied, ―I don‘t know the date when the liberation war started.‖ But, he had exactly said the date and detail of plundering incident that occurred 40 years ago. Abdul Jalil Sheikh, P.W.11 could neither say his date of birth nor any date of his three marriages, but easily said the date and recital of the crime committed by Delwar Hossain Sayeedi! d) Most of them concealed their real age in tribunal. As per the academic certificate of P.W.1, he was 12 in 1971. But, on 7th November, 2011 while giving evidence, he claimed himself of 60. Accordingly he was 20 during liberation war. P.W.2 mentioned his age as 61. But, on the date of cross-examination, he admitted that, his date of birth has been mentioned as 30/11/1956 in his birth certificate. Accordingly, he is now 55 and was 15 during liberation war.

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Inconsistencies as to Witnesses | Inconsistencies of International Crimes Tribunal, Bangladesh

Inconsistencies in Proceedings
Unjust Execution of Abdul Quader Mollah
Under section 20(3) of the Act of 1973, the International Crimes Tribunal announced a verdict and handed down a life sentence to Abdul Quader Molla on 5 February 2013 for two of the six charges and an additional 15-year sentence for three of the charges in addition to the time he had been imprisoned since his arrest. The one remaining charge was not proved in the tribunal by the prosecution. Later, upon the pressure of Govt. sponsored Shahbagh movement, the legislature amended the law giving chance to prosecution to prefer appeal before Supreme Court not only against acquittal but also against sentence. On 17 September 2013, the Bangladesh Supreme Court found Molla guilty of murders and other war crimes and ordered his execution, converting his life sentence to a death sentence. He was scheduled to be executed by hanging on 11 December at 0:01, but later the execution was suspended by chamber judge of the Supreme Court until further notice following a late evening move of the defence to seek review of the death penalty. His lawyers said that he had a “constitutional right” to review the judgement of Supreme Court. 49 On the next day, following two hours of hearings, Chief Justice Muzammel Hossain adjourned the hearing till the next day. Amongst the defence’s arguments was that the state was proceeding with preparations for the execution without completing all necessary legal procedures. The appellate division of Bangladesh Supreme Court, which raised Quader Molla’s life sentence
49

Article 105 of the Bangladesh Constitution says: the Appellate Division shall have power, subject to theprovisions of any Act of Parliament and of any rules made by that division to review any judgment pronounced or order made by it.

28

Inconsistencies in Proceedings | Inconsistencies of International Crimes Tribunal, Bangladesh

to a death penalty, rejected his petition to review the ruling. Quader Molla was executed on 12 December at 22:01 in a Dhaka jail. Before the execution, there were clear signs that the authorities were determined to speedily carry out the Jamaat leader‘s execution. They ignored all international appeals, including that of the Human Rights Watch (HRW), which issued an urgent statement demanding that the Bangladesh government halt the execution. The war crimes tribunal, which was revived by the government after a gap of 40 years, originally handed Molla a life sentence, but the government amended the law and referred the case to the Supreme Court which changed the life sentence to the death penalty. Brad Adams, Asia Director of HRW, said in a statement that his organization opposes the death penalty in all circumstances as an irreversible, degrading, and cruel punishment. ―It is particularly reprehensible in cases where laws were retroactively passed in order to enable the death penalty, and where the right to appeal against such a final judgment is not allowed.‖ He noted that under the law, convicts have the right to appeal against a judgment issued by the Supreme Court but the government authorities, including the Attorney General, stated that Molla had no such right and insisted that he had exhausted all legal options. The only recourse left open to Molla, according to government authorities, was to appeal to the President of Bangladesh for clemency. HRW said in its statement that the International Covenant on Civil and Political Rights (ICCPR), to which Bangladesh is a state party, prohibits the retroactive application of criminal law that has a negative effect on the defense. Adams said: ―Hanging Molla on the basis of retroactive legislation and then denying him the right to appeal against this sentence is a grave violation of his fundamental rights.‖
29 Inconsistencies in Proceedings | Inconsistencies of International Crimes Tribunal, Bangladesh

The statement also noted that the United Nations Human Rights Committee, which interprets the ICCPR, has said that in cases of trials leading to the imposition of the death penalty, scrupulous respect for the guarantees of a fair trial is particularly important and that any death penalty imposed after an unfair trial would be a violation of the right to a fair trial.

Putting Limit on the Opportunity to Defend
The Tribunal, since the detention of top Jamaat leaders, has entertained a number of applications seeking bail filed on behalf of the accused. Mechanically rejecting all the defense petitions can hardly be said to have been disposed of in accordance with law. In the case of Abdul Quader Mollah, out of the list of 965 defense witnesses upon which the defense intended to rely upon, the tribunal only allowed 6 witnesses by an order dated 05 November 2012. On the other hand, the prosecution was allowed to adduce all 12 of their witnesses including two Investigating Officers. The defence filed an application seeking recall of the order limiting defence witnesses. This indicates a clear injustice to the accused in as much as the Tribunal effectively deprived the accused from proving that at the time of the commission the alleged crimes, he was not even present in that place. At the stage of summing up of defence case, the defence filed an application seeking direction to the museum of Miprur Jallad Khana for production of statement made and archived therein by 03 prosecution witnesses and one defence witness. The Tribunal rejected the same with an assurance that the matter would be taken into notice at the time of its final verdict. But the final verdict totally ignored the clear discrepancy of the prosecution witness statements and failed to live up to its commitment. But the tribunal claimed that the law afforded full opportunity to present the defense, including the right to call witnesses and produce evidence before the Tribunal under section 10(1)(f) and section 17(3) which are compatible with Article 14(3)(e) ICCPR.9
30 Inconsistencies in Proceedings | Inconsistencies of International Crimes Tribunal, Bangladesh

Almost in every cases in this like manner, by limiting defense witness to only six out, persistently rejecting to review that decision and not allowing production of documents, the Tribunal was not giving the accused the full opportunity to present his defense.

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Inconsistencies in Proceedings | Inconsistencies of International Crimes Tribunal, Bangladesh

Executive Interference with process of Tribunal
Ministry Prepared Judgment for the Tribunal
A 164-page verdict of of International Crimes Tribunal-1 as to the sentence of Salahuddin Qader Chowdhury was leaked before the pronouncement of judgment. The leaked document was found on different websites. Soon after the tribunal sentenced SQ Chowdhury to death on October 1, 2013 his wife and other family members showed newsmen on the court premises a document that she said was the leaked judgment. They claimed the verdict was retrieved from the computer of the law secretary and that it was actually written by the law ministry. At least two anonymously operated websites— justiceconcern.org and www.tribunalleaks.be — first posted the document, which was then picked up by various blogs and Facebook pages. The websites claimed, it has now transpired that the verdict to be delivered by the Tribunal against Salahuddin Quader Chowdhury was prepared in the Ministry of Law and Parliamentary Affairs. The copy of the verdict was said to be recovered from a computer in the office of the Secretary-in-Charge of the Ministry of Law of Parliamentary Affairs, Abu Saleh Sheikh Zahirul Haque. What is more surprising is that the verdict was being drafted from 23 May, 2013, when the prosecution was still examining its witnesses. A total of 23 charges were framed against Salahuddin Quader Chowdhury in relation to offences committed during the liberation war of 1971. The prosecution produced witnesses in relation to 17 of the charges. From the copy of the verdict obtained from the Ministry of Law, it appears that Salahuddin Quader Chowdhury was found guilty of 9 of the charges and acquitted of 8 of charges. No witness was produced in relation to 6 of the 23 charges and as such Salahuddin Quader Chowdhury was also acquitted of all 6 of these charges. The file

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Executive Interference with process of Tribunal | Inconsistencies of International Crimes Tribunal, Bangladesh

containing the verdict was found in the D Drive of a computer located at the 6th floor of the Secretariat Building of the Ministry of Law and Parliamentary Affairs. In this drive there was a folder entitled ‗Alam‘ within which there was a subfolder ‗Different Courts n Post Creation‘ within which there was another subfolder titled ‗War Crimes Tribunal‘. In this subfolder there was yet another subfolder titled ‗Chief Prosecutor — War Tribunal‘. This subfolder contained a file titled ‗saka final-1′ which contained the draft verdict against Salahuddin Quader Chowdhury. When the verdict was finalised the name of the file was changed from ‗saka final-1′ to ‗ICT BD Case NO. 02 of 2011 (Delivery of Judgment) (Final)‘. The folder titled ‗Alam‘ belongs to a computer operator (by the same name) of the Secretary in Charge of the Ministry of Law.‖ 50 The surprising point is that the pronounced judgment as delivered by the Tribunal has been found to be resembling with the leaked one.

Offer of promotion to Tribunal Judges as incentives/rewards
The leaked skype conversation between Justice Huq and Ziauddin shows extensive executive interference with the process of the Tribunal. There is also evidence to show that Justice Huq had been offered promotion (elevation to the Appellate Division of the Supreme Court – the highest court in the country) upon disposal of as many as three cases by December, 2012. According to Justice Huq, the Chief Justice (whom he refers to as the ―Big Guy‖) told him if he gave a verdict in Prof. Ghulam Azam‘s case, he would be promoted. But another Appellate Division judge had asked for three verdicts. In the conversation he clarifies that the 3 verdicts are that of Delwar Hossain Sayedee, Prof. Ghulam Azam and Salahuddin

50

http://archive.thedailystar.net/beta2/news/part-of-verdict-leaked/

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Executive Interference with process of Tribunal | Inconsistencies of International Crimes Tribunal, Bangladesh

Quader Chowdhury.51 Justice Huq says the following to Ziauddin in his Skype conversation on 6 September, 2012: Justice Huq: The Big Guy [i.e. the Chief Justice] is waiting for that one [i.e Ghulam Azam‘s case] ……. Justice Huq: He [the Chief Justice] says, ‗give me one‘. Sinha Babu52 says ‗give me three by December. This one [i.e. Delwar Hossain Sayeedee], Ghulam Azam‘s and SAQA‘s [i.e. Salahuddin Quader Chowdhury]. If you can deliver judgments in these three then its confirmed. Then we will bring you up here. You won‘t be needed there [at the Tribunal] anymore.‘ I told him, ‗do whatever you will but give me the promotion first‘. In the ordinary course of events Justice Huq would never be promoted to the Appellate Division of the Supreme Court. He was offered an otherwise unattainable promotion as a reward/incentive. He would have to supersede 50 Judges in the Seniority List to be appointed as a judge of the Appellate Division. It is difficult to believe that other judges in both Tribunals-1 and 2 were not given similar incentives. In fact it is only natural that they were.

51

Audio Conversation of 6th September 2012 may be accessed from the archive available at http://www.tribunalsleaks.be/index.php/documentation/archive/audioarchive- Relevant excerpts of the audio at 57.00-58.59). 52 Justice S. K. Sinha, a judge of the Appellate Division of the Supreme Court. He is the senior most judge after the Chief Justice.

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Executive Interference with process of Tribunal | Inconsistencies of International Crimes Tribunal, Bangladesh

Executive pressure to deliver verdicts by a certain date and in a certain order
On 8th September 2012, Justice Huq and Ziauddin agreed over skype that the case of Prof. Ghulam Azam should be disposed of first given that there was a ‗political signal‘ regarding its disposal.53 On 14th October 2012, Justice Huq stated that the Government had gone mad for a judgment and that they are extremely keen to have a judgment delivered by 16th December 2012. (See also Economist Report of 15 December, 2012- ‗Trying war crimes in Bangladesh‘.)54 On 14th October 2012, Justice Huq informed Ziauddin that the Government had gone absolutely mad for a judgment, but that he could only deliver a judgment in Sayedee‘s case within December 2012, but not that of Prof. Ghulam Azam, which would continue till January-February 2013. He also said that the Government would ‗cool down‘ only after a judgment has been delivered.55 This is also reported in Amar Desh: Justice Huq: The Government is mad for a judgment. If it‘s Sayedee they want, I can deliver a judgment in December. The Government is mad. They want a judgment.56 In a conversation on 15th October 2012, Justice Huq stated that the State Minister for Law had visited him and that he (the State Minister) had asked him to deliver judgment in the case of Prof. Ghulam Azam quickly.
53

(Audio Conversation of 8th September may be accessed from the archive available at http://www.tribunalsleaks.be/index.php/documentation/archive/audioarchive – Relevant excerpts of the audio at 28.4229.00). 54 Copies of the Economist containing this report were seized by the Bangladesh customs authorities when they arrived at the Airport in Dhaka. 55 (Audio Conversation of 14th October may be accessed from the archive available at http://www.tribunalsleaks.be/index.php/documentation/archive/audioarchive- Relevant excerpts of the audio at 10.45-11.43). 56 Reported in the Daily Amar Desh on 9 December, 2012

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Govt.’s influence is clear by Ministers’ Comment
Some responsible persons of the government, by their comments, made it clear that government has strong influence over the tribunal. The Govt. Ministers have been trying to influence the prosecution by their arbitrary, irresponsible comments. Some of their comments are mentionable here: 1. On 11 February 2013, Prime Minister Sheikh Hasina, speaking in parliament said the tribunals would deliver judgments according to the law, but they should consider the people’s expectations while giving verdicts on war crimes cases. ―I am making this call to them [the judges] through parliament,‖ said Hasina.57

2. On 27 july 2012 Syeda Sajeda Chowdhury MP, Deputy Leader of the Parliament and then Acting President of Awami League demanded for expediting the trial of those accused of war crimes and committed crimes against humanity. “A Razakar-free Bangladesh should be built. No more farce, the trail of the war criminals must be completed. One or two (war criminals) should be hanged first by expediting the trial to stop their tall words. They should be stopped from telling on law,” she said while speaking as the chief guest at a discussion meeting in the city.58

3. On 31 January, 2012 Motia Chowdhury, Agriculture Minister and Presidium Member of Awami League, said, ‗more death penalties are coming and that will be executed‘‘. She said this while addressing in a party meeting at Dhaka. 59 Prior to that on August 07, 2012, Motia, while distributing festival-cloths in Sherpur, said, ‗those who are

57 58

The Daily Star, 12 February 2013 http://www1.bssnews.net/newsDetails.php?cat=0&id=267854$date=2012-07-27&dateCurrent=2012-08-02 59 The Naya Diganta, 1 February 2013

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Executive Interference with process of Tribunal | Inconsistencies of International Crimes Tribunal, Bangladesh

giving evidence in favour of war criminals, it‘s not sure whether they will able to back home or not. Before going back home, the public will try them by beating.‘60

4. On December 6, 2011 Jute and Textiles Minister of the Bangladesh Government Mr. Abdul Latif Siddiqui made a comment while delivering speech in National Public Library Conference room where he said, ―Persons who are accused of crimes against humanity should be hanged without any prosecution.61

5. State Minister for Law, Justice and Parliamentary Affairs Advocate Kamrul Islam said, the prosecution of top 8 war criminals must be completed within 2012.62 On 21 December 2012, he said, ‗at least one war criminal‘s sentence will be executed within this month of victory (December).63 6. State Minister for Health Dr. Captain (Rtd) Mujibur Rahman Fakir said, ―for the sake of sustaining the existence of Awami-League, we must prosecute war criminals. Therefore Nizami, Mujahid, Kamaruzzaman, Sayeedi, Salahuddin Qader Chowdhury shall be hanged within 2012. If BNP takes power before completion of this prosecution, they will kill us all. They are Iblis Satan (great devil).‖64 7. Mahmub-ul-Alom Hanif, Joint Secretary General of Awami League: said on November 24, 2012, ‗the verdict for top war criminals will be delivered within December.‘65

60 61

Daily Amader Somoy, November 14, 2012 http://www.bdonline24.com/index.php?option=com_content&view=article&id=16253%3A2011-12-06-05-0252&catid=78%3A2010-12-17-07-42-00&Itemid=81 62 http://www1.bssnews.net/bangla/newsDetails.php?cat=6&id=110929&date=2012-01-08 63 http://bangla.bdnews.com/news/25795 64 On 29 December, 2011 he made this speech in Mymensingh. Source: http://www.dailynayadiganta.com/details/19541 65 The Naya Diganta, November 25, 2012

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Criticism from experts and HR orgs
Stephen J. Rapp
US ambassador-at-Large for War Crimes Issues Stephen J. Rapp66 visited Dhaka from 11 January to 14 January, 2011. The main purpose of his visit was to observe the advancement of war crime tribunal in Bangladesh. Before his departure, he made some significant comments on the activities of the Govt. regarding the trial.67 Rapp‘s observations at a glance: 1. The provisions of International Crimes Tribunal (Amendment) Act are not satisfactory enough to fulfill the expectation of ensuring a fair trial according to international standard. 2. The Act should be amended in line with ICC provisions and the trial, have to be based on pure facts and evidence, instead of the past and present associations of the accused. 3. The trial Procedure that the Act provides for is in some places are defective as (a) the defence lawyers are not receiving copies of charges, (b) the three weeks’ period between framing formal charges and start of formal trial is very short for preparation and (c) There is no procedure of judicial review of the bail prayers
66

Prior to his appointment as the ambassador-at-Large for War Crimes Issues, Mr. Stephen J Rapp served as Prosecutor of the Special Court for Sierra Leone beginning in January 2007, leading the prosecutions of former Liberian President Charles Taylor and other persons alleged to bear the greatest responsibility for the atrocities committed during the civil war in Sierra Leone in West Africa. During his tenure, his office achieved the first convictions in history for sexual slavery and forced marriage as crimes against humanity, as well as convictions for attacks on peacekeepers and for the recruitment and use of child soldiers as violations of international humanitarian law. Appointed by President Obama, Ambassador Rapp was confirmed by the Senate and assumed his duties on September 8, 2009. He visited Bangladesh at the invitation of the Government of Bangladesh to share his experiences and perspectives on war crimes issues, and help in guiding local investigators and law officials regarding various techniques and methods, as well as international norms and procedure.
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http://theindependentbd.com/paper-edition/metropolitan/dhaka/28343-us-ambasador-at-large-arrives.html

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4. The accused should get adequate opportunity for self-defence. 5. The US is ready to provide all necessary assistance to the Bangladesh government for fair and credible trial of the accused.

Shoddy tribunal has pushed the country to the verge of a civil war : AHRC
On its official website, the Asian Human Rights Commission 68 showed concern as to the torture of the Govt. upon opposition on the matter of war crime trial. It said, the tribunal on war crimes established in March 2010 has pushed Bangladesh to extreme violence. Since 28 February, 2013 the events have taken a violent turn in which almost 100 persons including women, children and police officers have lost life. Several hundreds more are injured, and properties destroyed of which no body in the country has any true count. Many, who have lost their lives or are injured, were not participating in any armed protest. The violence is linked to the war crimes tribunal and the judgments the tribunal pronounced. The tribunal has negated some of the basic norms of criminal justice, for instance, it has held ‘faceless’ trials. The tribunal specifically targets the Jamat-e-Islami, a political party that collaborated with the Pakistan military during Bangladesh’s war of independence in 1971. In fact the tribunal is a shoddy attempt of legalising a political act, that lacks transparency, accountability and is destined to fail justice. The tribunal is a political weapon of the incumbent government and its 14-party alliance led by the Bangladesh Awami League. Persons, who are close to the Awami League are not investigated for war crimes, though there are strong allegations against them. Similar allegations of bias exist concerning investigation and prosecution, that naturally is reflected in the adjudication of cases. The

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BANGLADESH: Shoddy tribunal has pushed the country to the verge of a civil war 

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integrity of the investigative, prosecutorial, and adjudicative limbs of the tribunal is also widely questioned. The neutral space for discussion and criticism of what is happening in Bangladesh is substantially narrow. Human rights defenders risk various forms of repression. Media and information flow through modern communication tools have been severely restricted and monitored by the state. The shoddy tribunal, literally negates the possibility of legitimate justice, not only to those who have suffered violence in the past but to the entire psyche of the nation. Worse, the tribunal has become a cause for more violence, and will trash a nation’s hope to seek and obtain justice. Video footages available show the state forces murdering unarmed civilians in full public view. On 15 February, the state police shot Mr. Tofayel Ahmed, a student in Cox’s Bazar district town. In another incident, like several others, persons allegedly from the Islami Chhatra Shibir, a student wing of the Jamat-e-Islami, are seen snatching guns from police officers and beating officers to death.

IBA on the Legality of War Crimes Tribunal of Bangladesh
An international expert panel named International Bar Association (IBA) which includes international lawyers and former war crimes prosecutor has submitted a legal opinion to the government about legislation for war crimes trials. According to the report Bangladesh legislation for war crimes trials is not compatible with international standards. Whit this legal opinion the expert lawyers panel has recommended a further 17 changes to the recently amended International Crimes (Tribunals) Act 1973. Changes contains “significant omissions” regarding protection of rights of those on trial and “out of date” definitions of war crimes.
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The War Crimes Committee of the International Bar Association (IBA) formally submitted the written legal opinion at the end of February to the Bangladesh government. The UK’s AllParty Parliamentary Human Rights Group, who had requested the legal advice from Govt., has presented the written opinion. The UK parliamentary group confirmed press that the Bangladesh High Commission in London had confirmed 12 days ago that it had sent the legal advice to the “relevant government authorities” in Bangladesh. A spokesperson from the international expert also said, “We are now waiting for a more substantive reply from the relevant government authorities.” 20-member expert advisory board from The International Bar Association (IBA) recommend 17 changes to the International Crimes (Tribunals) Act 1973, amended by the government last year, though they do acknowledge that the legislation “provides a system that is broadly compatible with current international standards”. The IBA’s “area of greatest concern” in the amended Act involves the rights of individuals on trial where there are “some significant omission of the accepted international standards”, according to the legal opinion submitted to the government. The provisions concerning the process of investigation, in particular the rules relating to self-incrimination, are “complicated”, “confusing” and “should be removed as unnecessary‖. The legal note raises concerns about definitions of two offences in the Act. It states that the definition of “crimes against humanity” used in the Act “misses an important element of the more modern definition” which says the crimes must be “widespread or systematic” and the accused person must have had “knowledge” of the crimes. The Act should not allow tribunals to continue in absence of any of its members. The accused must also have the right to

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challenge the constitution of the tribunal as well as the appointment of its members if “possible prejudice” arises during the trial. The lawyers advise that sections of the Rome Statute of the International Criminal Court dealing with rights of suspects during investigations should be included in the Act. Another proposal is that Article 14 of the International Covenant on Political Rights which sets out “fundamental principles which protect the rights of individuals before a court of law”, should be incorporated. It also says that the offence of “crime against peace” should be deleted as it contains “outdated statutory language which remains undefined in most recent statutes in international criminal law”.

Other Mentionable Concerns69
1. By a letter dated 15th March 2011 written to the Honourable Law Minister, the International Centre for Transitional Justice [ICTJ] based in New York, criticised the 1973 Act and asked the Government to ensure right to a fair trial, due process, safeguards against arbitrary detention and principle of equality of arms. By a letter dated 21st March 2011, the US Ambassador-at-Large on War Crimes Stephen J Rapp written jointly to the Honourable Foreign Minister and the Honourable Law Minister asked the Bangladesh Government to update the law to bring it to international standard, define the elements of crime, to protect the rights of the accused persons, to create a second chamber in the Tribunal to hear appeals of interlocutory matters, and allow participation of foreign Counsels. By a letter dated 21st June 2011 written to the Honourable Chairman of the ICT, the Amnesty International expressed their concern at the lack of definition of crimes and their inconsistency with international laws, denial of guarantees of the right to fair trial as recognised in international law, and
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http://bdinn.com/articles/un-ruling-on-bangladesh-war-crimes-tribunal/

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also the denial of the fundamental rights of the accused guaranteed under the Constitution of Bangladesh. 2. On 27th July 2011, in his meeting with the Honourable Law Minister in London, Lord Eric Avebury a very influential member of the British House of Lords expressed his concerns on the refusal of the Government of Bangladesh to allow foreign counsel to appear before the Tribunal, the fact that the Chairman of the Tribunal participated in the People‘s Enquiry Commission in 1992, and the failure to amend the 1973 Act and the Constitution of Bangladesh. Similar concerns were expressed by the members of the international community in a seminar on ICT organised in Washington DC on 19th May 2011 by the American Society of International Law (ASIL). 3. Besides, on 21st December 2009, Honourable Michael J Beloff QC, a very senior member of the English Bar, in his detailed advice, criticised the ICT Act 1973. Similar criticisms were made by Mr Soli J Sorabjee, a very senior advocate and former Attorney General of India, in his opinion dated 19th May 2010. Professor William A Schabas OC MRIA, Professor of Human Rights Law, National University of Ireland Galway, gave a similar opinion on 24th March 2011. Another opinion was jointly given by Mr. Gregor Gy-Smith and Ms. Collee Rohan on 7th April 2011. Mr Gy-Smith is a prominent practitioner of international criminal law. Formerly, he was President of the Association of Defence Council for the International Court of former Yugoslavia [ICTY] and currently acting as Co-President of the Association of Defence Council practising before the ICTY. Ms Rohan is also a prominent practitioner of international criminal law. She appeared as Defence Counsel before the ICC, ICTY and ICTR. She is the founding member of the International Criminal Law Bureau.

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4. On 13 October 2010, Mr Steven Kay QC, who was the lead Counsel defending Slovodan Milosevic (the former Serbian leader) in the ICC and who was also the Secretary of the Criminal Bar Association of England and Wales, in a very detailed opinion criticised the 1973 Act as following far below international standard. There are other opinions as well given by reputed national and international lawyers. The Bangladesh Government could not care less. The trial is proceeding in full swing despite severe international criticisms. 5. In this background, on 23rd November 2011 the United Nations Working Group on Arbitrary Detention, provided its opinion on the legality of the detention of the persons under ICTA and also commented generally on the 1973 Act and the standard of trial. The UN Working Group has found ―significant restrictions‖ on the defendants‘ (detainees‘) access to legal assistance and their ―unimpeded access to evidence‖. The UN Working Group is of the opinion that in pretrial detent ion, the Government of Bangladesh must comply with international obligations. They are also of the opinion that the procedure of the Tribunal ―must comply with the relevant obligations of Bangladesh under international law‖. The Working Group has noted that Bangladesh has ratified the Rome Statute of the ICC which provides a model for war crimes trial. 6. In its opinion, the UN Working Group has also emphasized that in international law ‗detention prior to conviction should be an exception rather than a rule.‘ Yet this well recognised principle of international law has been violated. The Tribunal has detained 6 of the 8 detainees for over one year without framing charges against them. Although, none of the detainees have shown any inclination to abscond or tamper with evidence prior to their arrest, they have been detained without assigning any legal reason. As pointed out by the UN Working Group this is a violation of Article 9
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of the Universal Declaration of Human Rights (―UDHR‖) and Article 9 of the International Covenant on Civil and Political Rights (―ICCPR‖). 7. The UN Working Group has also noted that the ‗Government has not submitted any information justifying the refusal to release [the detainees] on bail..‘. The UN Working Group has therefore concluded that the deprivation of the liberty of the detainees is arbitrary and in violation of the UDHR and the ICCPR and has called upon the Government to take necessary steps to ensure compliance with international law.

Recommendation
1. Bangladesh Government has treaty obligation to maintain international standards in criminal trials. Bangladesh has signed and now a party to the UN International Covenant on Civil and Political Rights of 1966 (ICCPR, a treaty obligation Bangladesh undertook since 2000). Moreover, Bangladesh has also signed the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 (a treaty obligation Bangladesh undertook since 1998). Most importantly, in March 2010 Bangladesh ratified the Rome Statute of the International Criminal Court (ICC). Thus any war crime tribunal in Bangladesh must comply with the international obligations of Bangladesh. But, the international community has concluded that the rules and proceedings of the war crime tribunal in Bangladesh are completely inconsistent with international standard. Bangladesh Government should have complied with recommendations of other human rights bodies to correct the flaws in the war crime tribunals of Bangladesh. 2. The trial of all the cases must be started from the beginning as the whole process of appointment of judges, framing of charges and conducting of the trial was severely
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flawed and devoid of any internationally recognised standard. The tribunal should be reconstituted and judges against whom allegation of corruption is raised or who are appointed only on political consideration should be removed. Only judicial capacity and high integrity should be the basis of appointment of the judges of the tribunal. 3. The accused persons should be given adequate time and opportunity of defending their case. Their right to a free and fair trial in an independent court must be ensured. Equal opportunity should be given to both the defence and the prosecution. 4. Retroactive application of law should be abolished. 5. The government should not use the tribunal as a means of harassing the opposition leaders. Politically motivated prosecution must be discontinued to ensure justice for those who are the victim of the atrocities of the war. 6. The civil society and media must raise the issue of fairness and credibility of trial proceedings. 7. International community must consider while making any decision about their relation with Bangladesh the issues of human rights violation and political persecution in the name of trial of war crimes. Donor agencies should ensure that no person is denied his right of fair trial due to his involvement with any political or other organization.

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Source