TABLE OF CONTENTS

CHAPTER
Outline of today's programme Overview Of ICSF Core Values and Approaches Mission Volunteers and Partnerships in the coalition History 1971 & Background of ICT Background The International Crimes (Tribunals) Act 1973 Nature of ICTA The Tribunals Prosecution Team & Investigation Agency ICSFs Comment on the letter of Mr. Stephen Rapp Let There be Light: Commentary on IBA Fatwas 16th Anniversary of the liberation war museum ICT: Responding to its recent critics Lobbying to prevent justice? Toby Cadman: A crusader for rights or devils advocate? ICT Prosecutors speech before EU Parliament

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INTERNATIONAL CRIMES TRIBUNALS

JUSTICE IN PERSPECTIVE

Outline of today's programme

Welcoming Speech Documentary A video presentation about the 1971 liberation war of Bangladesh.

Presentation Four members of ICSF will present their speech highlighting four different but related aspects to the justice process at the International crimes tribunals of Bangladesh. The topics are: Presentation 1: 1971: Perpetrators, Victims, Motives, and Crimes Presentation 2: Four decades of campaign for justice Presentation 3: Framework of the Justice Process at the ICT Presentation 4: Alignments and roles of the parties Q&A Session (Moderated by Nora Sharif) Concluding speech

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OVERVIEW OF ICSF
International Crimes Strategy Forum (ICSF) is an independent global network of activists and organizations with membership spread out in four continents. Deeply committed to the spirit of the historic Liberation struggle of 1971 in Bangladesh, when, number of major international crimes were committed, this international network was setup to support the justice process initiated by the Government of Bangladesh through the International Crimes Tribunal (ICT), Bangladesh, to investigate and prosecute those responsible for international crimes committed in 1971. Since its inception, ICSF has been interacting and engaging with the ICT and other relevant authorities to assist the justice process that is in place to bring to account the perpetrators of 1971 alleged of international crimes. United, the coalition stands against all forms of impunity.

Core values and approaches

Democracy. Human Rights. Justice. Rooted in non-elite, non-exclusive, collective and participatory premises, the attitudes (as well as qualities) that we seek to promote within and outside the coalition are: excellence, dedication, boldness and perfection. All forms of elitist and/or self-propagating tendencies are, therefore, resisted. We believe, this is the kind of mindset that time demands of this nation in order for it to succeed in bringing the history back on track through securing long-overdue justice.

Mission
Broader aims and objectives of this coalition 1. Providing technical and research assistance to the various components and stakeholders of the International Crimes Tribunal in Bangladesh; 2. Facilitating documentation, archiving and research based on existing data and evidence; 3. Carrying out new research on pertinent issues as well as gathering new evidence; 4. Generating consensus on key strategic issues; 5. Networking with other civil society actors and experts, both in Bangladesh and abroad, with a view to finding common grounds for collaborative activism and generating support; 6. Lobbying with the formal official actors and working with the media, both in Bangladesh and abroad; 7. Monitoring progress of prosecution initiatives and adopting strategies to counteract developments that can potentially delay or defeat the cause of justice; 8. Covering the trials thoroughly and providing in-depth feedback by involving experts in the process.

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VOLUNTEERS AND PARTNERS IN THE ICSF COALITION

Since its humble beginning in early February 2009, the Forum has come a considerable way. It had always been comprised of and run by volunteers who are committed to justice and fairness acting in concert to pursue the Forum's objectives. Our volunteer-base is now spread all over the world and the network is expanding. We have amongst us - students, teachers, policy makers, human rights and cultural activists, professionals such as lawyers, engineers, doctors, researchers, journalists and other media personnel, members in the armed forces, individuals who have fought in the liberation war and also those who have lost their dear ones resulting from acts of war crimes in 1971. With every passing day, more and more people and organisations are joining hands with us to volunteer and brainstorm in the projects. At present, in addition to volunteers contributing independently, the following organisational entities are also working together as partners in this Coalition (listed in order of joining): (1) Muktangon; (2) Bangladesh Centre for Genocide Studies. (3) Sachalayatan; (4) Cadet College Blog (CCB); (5) E-Bangladesh; (6) Genocide Archive Online; (7) Amar Blog; (8) Mukto-Mona; (9) News-Bangla; (10) London Lawyers' Forum; (11) Nagorikblog; (12) Amra-bondhu; (13) Hoi-Choi Web Radio.

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HISTORY 1971 & BACKGROUND OF ICT

Background 1. The people of Bangladesh waged armed struggle to free the country from military occupation by Pakistani army and thus ensued the liberation war of 1971 that lasted about nine months from on 26 March to 16 December 1971 eventually resulting in the emergence of a free and independent People's Republic of Bangladesh. The conflict broke out when the Pakistani army units launched a military operation called Operation Searchlight in East Pakistan against Bengali civilians, students, intelligentsia and ordinary people who demanded military regime, then in power in Pakistan, to adhere to the results of the first ever democratic election held in Pakistan in 1970. The Awami League received overwhelming endorsement and became the majority party of Pakistan, but still, instead of following democratic norms and to handing over power to the elected majority, the Pakistani military junta decided to launch massive armed attack on civilians and began committing crimes all over the country against unarmed civilians, not seen since the end of the second world war. 2. As a result of this long military operation led by the Pakistani military with direct participation, support and collaboration of an ideologically motivated small minority, in the end succeeded in killing three million people, committing 300.000 rapes, and deporting 10 million people to neighbouring India, and half of 75 million population internally displaced. The crimes committed in 1971 in Bangladesh in terms of brutality, atrocity and heinousness has still regarded one of the major occurrence since Holocaust. In perpetrating these crimes, the occupying Pakistani army and their auxiliary paramilitary forces (e.g., Razakar, al- badar etc) did not regard the minimum norms and standards of international war laws(jus in bello). 3. But the perpetrators of these unprecedented crimes enjoyed decades impunity and remained unaccountable until now while victims suffered in agony and lack of justice. There were however nationwide campaign for justice over these years and in last general election in 2008, the Awami League-led 14-party alliance promised to end this culture of impunity and to initiate legal process to try those responsible for committing international crimes in 1971. Thereafter, the government that formed after the election set-up the ICT on 25 March 2010. The Bangladesh government is pledge-bound to its people and to the world to end impunity to those who committed crimes such as genocide, crimes against humanity and other international crimes on the territory of Bangladesh.

The International Crimes (Tribunals) Act, 1973 1. The International Crimes (Tribunals) Act 1973 was enacted by the Bangladesh Parliament which is vested with the legislative powers of the Republic under the Constitution. After detailed deliberation and taking experts advise, the Parliament unanimously adopted the ICTA to provide for detention, prosecution and punishment of persons of genocide, crimes against humanity, war crimes and other crimes under international law, and for matters connected therewith (Preamble). 2. The Parliament enacted ICTA to provide for domestic mechanism to address large scale crimes committed in Bangladesh during the war of liberation of Bangladesh in 1971. The crimes included targeted killings of certain religious and national groups such as Bengalees and Hindus, widespread, systematic as well as indiscriminate killings of civilians including
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women and children. The women were particularly targeted for rapes and assaults. Hindus were killed and or forcibly converted to Muslim. Crimes also included wanton destruction of villages and towns, and looting of properties. As noted above, 10 million people were deported to India. In short, Crimes against humanity, Crimes against peace, Genocide, War Crimes and other crimes under international law were committed at an unprecedented scale. 3. These crimes caused serious concerns to the international community, and violated numerous provisions of international humanitarian laws, customary international laws, and civilized practices. The Government of Bangladesh decided to investigate and prosecute those involved and responsible and the ICTA created necessary legal framework for the justice process to begin. Moreover, the Government was mindful about its international obligations and of customary international law including its duly to investigate and prosecute all crimes as well as crimes of international concern and international crimes. 4. The ICTA has been an unique piece of legislation as in 1973, hardly any country in the world had developed such a comprehensive legal infrastructure to enable national jurisdiction to try international crimes committed by nationals of any country in the territory of Bangladesh (ICTA Section 3. 1). It created a complete legal order, considering gravity of crimes involved as well as limitations of ordinary criminal procedures, that provided no avenues to address international crimes and for the first time, and enabled establishment of the International Crimes Tribunals (ICT). Nature of ICTA 1. It is important that the true nature of this ongoing process is understood. The Act itself is a domestic law, passed by the Parliament of Bangladesh. It needs to be clarified that this justice process was never part of any intervention by the international community, nor a result of any international compromise, unlike most justice initiatives of its kind that have taken place in the international arena. The justice process that this Act envisaged setting up is purely a domestic process. This means, the International Crimes Tribunals in Bangladesh is not international in nature, but for all meaning and purposes they are domestic. The only international element in the scheme of things is the nature of the offences, that is, the international crimes. Although these crimes, due to their nature and trajectory of developments, have historically been a part of international criminal law, the Act internalised these crimes and thus made them a part of the jurisprudence of the Tribunal and of Bangladeshs legal system. It in fact should be seen as internalization of international law in domestic legal order of Bangladesh which was done pursuant to international obligations of Bangladesh to deal with international crimes as well as to ensure justice to millions of victims of crimes committed in 1971.

2. The Crimes under the ICTA are all crimes under customary international law and regarded as international crimes. Although the Act has been enacted in 1973, the core crimes remained same until today and understood now exactly as was when the law was adopted. The Act however expanded the definition of Genocide to include political group as one more group. This was again based on prevailing notion of Genocide as reflected in the first UN General Assembly Resolution no 95(1) adopted on 11 December 1946 that reads as follows: The Crime of Genocide

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Genocide is denial of right of existence of entire human groups, as homicide is denial of right of existence shocks conscience of mankind, results in great loss of humanity in the form of cultural and other contributions represented by human groups, and is contrary to moral law and to the spirit and aims of the United Nations. Many instances of such crimes of genocide have occurred when racial, religious, political and other groups have been destroyed, entirely or in part. The punishment of crime of genocide is a matter of international concern. The General Assembly, therefore, Affirms that the genocide is a crime under international law which the civilised world condemns, and for the commission of which principals and accomplices - whether private individuals, public officials, or statesmen, and whether the crime is committed on religious, racial, political or any other grounds - are punishable; Invites the Member States to enact the necessary legislation for the prevention and punishment of this crime. However, the political group was left out in the final negotiations of the Genocide Convention adopted in 1948, largely because the States during negotiations failed to reach to a consensus but the demand for expanding the ambit of definition of genocide has always been there. Therefore, Bangladesh, having experienced the actual carnage of genocide, quite rightly included the political group as part of definition of genocide, adopting the broader ambit of definition as per the UNGA Resolution which should always have been there. 3. Apart from Crime of Genocide, the ICTA deals with Crimes against humanity, Crimes against peace, War Crimes, Violation of humanitarian rules applicable in armed conflicts laid down in Geneva Conventions of 1949; and attempt, abetment or conspiracy to commit such crimes, and complicity in or failure to prevent commission of such crimes [Section 3 (2) ICTA]. The Tribunals 1. In addition to defining norms of international crimes and other definitions, ICTA being a self-contained law, provided for setting up of Tribunals and determined its jurisdiction, powers and functions of investigation and prosecution agencies, procedure of trial, powers of the Tribunal, rights of the accused, judgment and sentence, rights of appeal, and power to formulate rules of procedure etc. 2. The first International Crimes Tribunal was set up by the Government on 25 March 2010, and the second Tribunal was set up in early 2012. The ICTA is very specific regarding the qualification of the appointee judges in order to ensure a high standard of trial. Section 6(2) of ICTA provides that any person who is a Judge or is qualified to be a Judge, or has been a Judge of the Supreme Court of Bangladesh shall be appointed as Chairman and Member of the Tribunal. Accordingly, two separate Tribunals have been constituted, each composed of one Chairman and two Members. Out of six members in both the Tribunals, five of them are sitting Justices of the Bangladesh Supreme Court and remaining Member is a senior District Judge having long standing judicial experience in the trial courts. Here it needs to be pointed out that although the Tribunals, by nature, are trial courts, they are like no other trial courts in
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Bangladesh. In the International Crimes Tribunals hearing of motions and petitions, monitoring progress of investigations and the safety of the accused during interrogations, admission of evidence, ensuring protection of witnesses and victims for both the prosecution and defence, deciding on guilt and passing of sentences are all determined and adjudicated by a panel of judges who are very high in rank and rich in experience, maturity, and judicial prudence which are unmatched to any other trial courts in Bangladesh. Independence of the Tribunals and their fair trial obligations 3. The ICTA, through amendment in 2009, guaranteed independence of the Tribunal under Section 6.2A which reads as: The Tribunal shall be independent in exercise of its judicial functions and shall ensure fair trial. This provision was specifically introduced to protect the Tribunals from potential political or other influences by imposition of this positive duty to act independently. 4. Section 6(2A) of the ICTA obliges the Tribunals to ensure fair trial in recognition of the obligation under the Constitution of Bangladesh as well as under international instruments to which Bangladesh is a party to, including the ICCPR. This is a positive legal obligation of the judges to ensure that every aspect of fair trial is ensured throughout the process, for the accused, as well as for the witnesses and victims.

Prosecution Team and Investigation Agency 1. Under the ICTA, on 25 March 2010, the Government set up the Prosecution Team [Section 7(1) ICTA] and the Investigation Agency [Section 8(1) ICTA] of the Tribunal and appointed Prosecutors and Investigators respectively. The Prosecutors of the International Crimes Tribunal are all experienced lawyers with a significant number of years of court experience. They are well versed in criminal law and possess considerable expertise at handling criminal trials. Over the years, these Prosecutors have also enhanced a great deal of understanding and knowledge over the theories and concepts surrounding international criminal law and how trials of persons alleged to have committed core international crimes, have been held across the globe. This has been made possible due to the varied exchanges and collaborations between the Prosecution Team as well as the Investigation Agency with many international and national bodies, civil society groups, governmental agencies etc. that are all concerned stakeholders in the process of bringing an end to impunity.

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16th Anniversary of the liberation war museum Richard J Rogers

Introduction: I feel extremely honoured to speak to you today as we celebrate the 16th anniversary of the Liberation War Museum. The Museum is a testament to a peoples desire to know and understand the difficult and painful episodes of its own history. Few communities around the globe can claim to have a history devoid of conflict or tragedy and dealing with the post-war situation has always been a challenge. Embarrassed or afraid of the truths that may rise to the surface, some call to forgive and forget the past, to turn a page, to leave the skeletons in the closet. Yet, time and again, this philosophy of repression has left too many questions unanswered, too much misunderstood, and has led history to repeat itself. In the former Yugoslavia, grievances hundreds of years old re-surfaced in the 1990s to result in one of the greatest tragedies in modern European history. In Rwanda, the echoes of colonial rule fuelled a divide that ended in a slaughter of almost a million people. Two decades after the First World War left Europe in ruins, Adolf Hitler managed to garner support for a second and even more devastating war. In 1971, Bangladesh was scarred by a terrible conflict that has not been put to rest. The way in which the people of Bangladesh approach this past will undoubtedly shape its future. Today I would like to talk about a number of issues that are relevant to the on-going accountability process at the International Crimes Tribunal in Dhaka (which I will refer to as the ICT). Initially I will discuss the delays in bringing accountability for mass atrocities, the need to keep memories alive during that waiting period, and the importance of legacy programmes in giving a sense of ownership to the public. Later I will address the acceptance of State responsibility for mass crimes, and will try to give some context to the criticisms that are being levelled at the ICT. By way of comparison I will, from time to time, refer to my experiences in Cambodia at the Khmer Rouge Tribunal, where I worked for five years as the head of the defence office.

Victims long wait for Justice Post conflict accountability can be dealt with in different ways. At the end of World War II, the three leaders of the Allied Powers met to discuss this very question. Winston Churchill advocated for the summary execution of all captured high-ranking Nazi officers. Stalin preferred to hold a show trial, where the defendants would be presumed guilty and the forum would be used to catalogue their crimes and determine their punishment. Roosevelt was also in favour of a trial, but advocated for a more balanced procedure. The Nuremberg International Military Tribunal was born out of these negotiations, setting down the foundations for international criminal justice. Over the last six decades, criminal trials have gradually become the recognised means of assessing responsibility, and shedding light on
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conflicts. From Germany to Japan, Yugoslavia to Rwanda, or East Timor to Sierra Leone, victims of war and tyranny have come to associate justice with the path to truth, reconciliation and emancipation. Yet in most of these cases, the wait for justice has been long and hard. I recently worked in Cambodia where in the 1970s, a Maoist regime plunged the country into a four-year nightmare of forced collectivisation, systematic torture, and the death of around 1.7 million people. Although the Khmer Rouge was toppled in January 1979, it was not until 2007 that a judicial body began to look into these atrocities. This judicial body is known as the Extraordinary Chambers in the Courts of Cambodia, or the Khmer Rouge Tribunal. One victim and subsequent witness at this Tribunals first trial typifies the long and difficult wait for justice experienced by the victims of the Khmer Rouge. His name was Vann Nath. After spending two and half years in a forced-labour camp, Vann Nath was arrested in December 1977. Following a series of interrogations and torture, he was sent to the notorious S21 prison. For a month he lay shackled by his ankles, sharing a filthy cell with up to sixtyfive other detainees, in silence and in fear. Prisoners were only allowed six teaspoons of gruel a day, and if insects fell from the ceiling they fought each other to eat them. Prisoners were not allowed to talk, move, or sit up without permission. Van Nath testified at trial that people were dying one after another and he felt like death was imminent. One day during his capture, Vann Nath was asked to paint a picture. His jailer approved of his artistic talent and Vann Nath spent the next 11 months painting portraits of a man he later learned was Pol Pot, the leader of the Khmer Rouge. This ultimately saved his life as he was spared death in order to paint. Although his living conditions improved, the torment continued, as he heard the cries of tortured inmates, and saw thousands leave to the killing fields. When the Vietnamese invaded Cambodia in January 1979, Vann Nath fled S-21 to freedom, but in the knowledge that he was one of only a handful of prisoners to survive over 12,000 fellow inmates had perished. Van Naths memories continued to haunt him long after the Khmer Rouge was defeated. As a kind of therapy, he began painting the scenes of S21 as he remembered it, and these shocking paintings now cover the walls of the Genocide Museum that occupies the former grounds of S21. Finally, after thirty years of nightmares and unanswered questions, Van Nath was given the opportunity to testify as a witness in the case against the former Chief of S21, a man known as Duch. When asked what he hoped to gain from the trial Van Nath responded: I never imagined I would be able to sit in this courtroom todayThis is my privilege. This is my honor. I do not want anything more than that. Duch was sentenced by the Khmer Rouge Tribunal to 35 years in prison with 19 years left to serve after deductions. Although many commentators criticised what they saw as a lenient sentence, Vann Nath said very sincerely that he accepted this decision by the Tribunal.

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Vann Naths story illustrates the importance of justice to the victims of atrocities. Justice, in Vann Naths sense was seeing his own jailer confronted with the horrible crimes he had committed, and the knowledge that there was, finally, no impunity for his tormentor. His sense of justice mirrors the sentiments felt by victims all over the world.

Justice Delayed Sadly, the delay in bringing justice to Vann Nath proved to be too long. The verdict and sentence were appealed, but tragically, Vann Nath died a few months before the final appeal judgement was rendered, never to hear that Duchs term of imprisonment was increased from 19 years to life. The road to effective justice is never an easy one, and the victims of atrocities are all too often sacrificed for political expediency. A genuine justice process cannot be powered solely by the painful memories and hopes of the victims. It requires strong public and political will, as well as substantial resources. It also requires a secure context, within which the lawyers and witnesses can feel at ease to make decisions and statements dictated by their conscience, and not by fear or external influence. In Cambodia, such a state of security was not possible until the effective end of the civil war in 1998. Yet, even in a relatively safe environment and with the benefit of political will to hold trials, it took another nine years of difficult negotiations between the United Nations and the Government of Cambodia, to finalise the terms of international support. In many ways the difficulties faced in Cambodia mirror hurdles to justice the world over, and nowhere more so than in Bangladesh. For forty years, the appeals for a genuine judicial process fell victim to the constant shift of political power, from those wishing to pursue justice to those for whom the pursuit of justice collided with their personal or power interests. Justice in Bangladesh was delayed for far too long, but now that the conditions are finally ripe, it must be pursued robustly.

Keeping memory alive Complex criminal cases examining civil and military command structures require large amounts of evidence to establish the link between leaders and foot soldiers. In the context of trials, which, as in Bangladesh and Cambodia, take place decades after the fact, retrieving, safeguarding and cataloguing such evidence requires a tremendous effort. International trials in such circumstances would not be possible without organisations such as the Liberation War Museum, keeping alive the memories of past wrongdoings and acting as an archive for evidence. There are a number of examples of these types of organisations around the world and I would like to outline the work of one or two others.

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After the breakup of the Soviet Union, a volunteer organization called Memorial was founded in Russia, subsequently spreading to other post-Soviet States. Its goal is to promote the revelation of truth about past events and to safeguard the memories of the victims of political repression by totalitarian regimes. Originally conceived to document only Stalin-era atrocities, the organization has developed into an important archive of post-Soviet human rights abuses, and an engine for the formation of public consciousness based on the values of democracy and law. Parties bringing cases against post-Soviet States to the European Court of Human Rights have relied heavily on the wealth of information in its database. Another example is DCCAM. The Documentation Centre of Cambodia, began as a field office of Yale Universitys Cambodian Genocide Programme, funded by the US State Department. In 1997, it became an independent NGO, whose goal is to research, document and share the history of the Khmer Rouge period. To date, DCCAM has provided over half a million pages of documents and photographs to the Khmer Rouge Tribunal to be used as evidence in the ongoing case against the remaining leaders of the Khmer Rouge regime. As you all know, the Liberation War Museum is not just a building with walls, a roof and a ticket booth. The Museums mission, just like the mission of Memorial and DCCAM, is to keep alive the memories of the painful past for future generations, and to teach them the importance of tolerance, mutual respect, democracy and the rule of law. Its efforts have contributed enormously to making the International Crimes Tribunal a reality. Long after the ICT completes its mission, the Liberation War Museum will undoubtedly continue to play a vital role in documenting and disseminating the courts findings, evidence and testimony, thus turning legal proceedings into a record of history.

The importance of outreach and legacy To help transfer the important lessons about history and justice to the general public, Legacy and Outreach programmes have been implemented by war crimes courts or by NGOs. Important legacy initiatives may include public forums to discuss the trials, the publication of summaries of proceedings, public screening of important hearings and court rulings, workshops on crucial legal and factual issues, as well as exhibitions and archives. These sorts of initiatives are important because whilst the moral principles underpinning the trials may resonate with people from all walks of life, the slow and technical legal process can easily alienate much of the public, with only arrests and verdicts generating widespread interest. This in turn dilutes the peripheral, long-term benefits of the criminal proceedings. Outreach programmes, which can explain the legal process in a language understood by all, can help give the public a real sense of ownership. When working at the Khmer Rouge Tribunal, I attended public forums around Cambodia to discuss on-going proceedings. Students, legal professionals and poor farmers alike would be given an opportunity to listen and speak to representatives from all the various organs of the Tribunal. We spoke to victims and perpetrators, those who believed in the benefits of the
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Tribunal and those who criticised it. Although the tangible benefits are hard to measure, the feedback from the communities was extremely positive and the forums were always well attended. In addition to these public forums, Cambodian NGOs, such as DCCAM, would organise transport, food and guided tours for communities across the country that wanted to visit the court and watch the on-going proceedings from the public gallery. These types of initiatives could also enhance the impact and the legacy of the ICT in Bangladesh. The fact that the Dhaka Tribunal is a national court and therefore accessible to many people, is an important benefit from a legacy perspective. Full advantage should be taken of this proximity.

State Responsibility Wars and mass atrocities are rarely free from the participation of State entities the army, the police, the State security services. Many Bengali victims may rightfully feel that a full inquiry into the crimes of 1971 is impossible without an investigation into the actions of the Pakistani military and State. The State of Pakistan has never accepted responsibility for its actions or fostered local accountability mechanisms. This is despite findings by a Pakistani Judicial Commission that the Pakistani army may have committed atrocities and should face a Court Martial. Although this lack of acceptance and action by Pakistan is regrettable, it is not unusual. The former Soviet Union has never taken responsibility for its Cold War proxy conflicts that led to countless deaths, political upheaval and economic collapse in nations across the globe. The United States has never acknowledged its responsibility for the consequences of its carpetbombing operations in neutral Laos and Cambodia during the Vietnam War. Nor has China, for the support it provided to the Khmer Rouge. And Turkey still refuses to accept its role in the Armenian Genocide. The goal of international criminal law is to determine criminal responsibility of individuals, not the responsibility of a State. Yet, the potential for international criminal trials to highlight the role of third States and to discuss State complicity, should not be ignored. The temporal jurisdiction of the Khmer Rouge Tribunal was designed to avoid the period of US bombing of Cambodia, which took place prior to the Khmer Rouge victory. Nevertheless, the lawyers have made numerous attempts to expose the influence of the United States and China on the events being examined. Likewise, Pakistani officials may never be brought before the International Crimes Tribunal in Dhaka to respond to allegations of mass atrocities, but that does not mean that these important facets of history cannot be aired during the proceedings. It took the French government fifty years to acknowledge and apologize for its role in the deportation of 80000 French Jews to Nazi concentration camps during the Second World War. In 2008, the Australian government apologized for policies that "inflicted profound grief, suffering and loss to its Aboriginal population decades earlier. The decision to make
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both of these apologies was influenced by widely publicized litigation. In a similar way, the International Crimes Tribunal may also play a role in a future acknowledgment of responsibility by the State of Pakistan.

Addressing criticisms To recap, I have discussed a number of ways in which the ICT, in cooperation with the Liberation War Museum, can be of value to the people of Bangladesh. Beyond the fact of bringing a handful of alleged perpetrators to justice, the process has the potential to generate a comprehensive debate on crucial historical questions. It can also elucidate and disseminate a more objective record of history, strengthen national judicial capacity and the rule of law, as well as the peoples trust in the legal process. Most importantly, it will give victims of 1971 atrocities a belated, but crucial chance to witness and participate in real justice, hopefully laying to rest decades of unanswered questions and painful memories. However, all of these important benefits may be overshadowed, or even undone, if the reputation of the ICT is marred by criticisms levied against it, both nationally and internationally. When looking at the criticisms voiced so far, it is clear that many have been based more on supposition than substance; many of the criticism from local actors have simply been attempts to obstruct and undermine the judicial process for political ends. These types of criticisms should be ignored or dismissed. Thankfully, other observers and monitors have provided far more constructive commentary or even recommendations aimed at improving the process. The defence has raised some important legal points. The value of some of these suggestions has been recognised by the Bangladeshi authorities who have relied on them to introduce procedural rules. This process of developing rules of procedure and evidence is quite normal in such courts and should be encouraged. When we look around the globe we find that none of the other war crimes courts were blessed with perfect rules from their inception. The fact that the procedural rules of the Yugoslav Tribunal have been revised 46 times over the last 18 years is a testament to its early imperfections. So just as the other courts have adapted over the years, so too can the ICT legitimately update its procedures to meet the needs of justice. The Tribunal deserves to be given the chance to do so. In any event, it is important that Bangladeshi and foreign observers see the ICT in context and put their concerns about the rules or the practice into proper perspective. Firstly, it is important to appreciate the huge difference in resources between the ICT and the other International Criminal Tribunals. The ICT was initially allocated 1.5 million USD for its entire life. That may sound a lot compared to the regular courts and indeed it may be hard to justify a bigger budget in a relatively poor country. But that budget is tiny compared to the UN assisted courts: The permanent International Criminal Court in The Hague now has an annual budget of around 130 million USD. You may be astonished to hear that despite having spent 800 million in its first 10 years, the International Criminal Court has only completed one trial, against one defendant, and delivered its first judgment last week. The
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two ad hoc International Criminal Tribunals one for Yugoslavia and one for Rwanda have a similar size budget to the permanent court and together have consumed three billion USD since the mid-1990s. For that money they have dealt with around 250 defendants. Even the relatively modest (so-called) hybrid courts - the Special Court for Sierra Leone and the Khmer Rouge Tribunal - cost around 30-40 million USD per year. Taking an average, one can expect the cost per defendant in these UN assisted courts to be at least 15-25 million USD, sometimes considerably more. With such large budgets one would expect the trials in the UN courts to be incredibly efficient and unquestionably fair. Unfortunately, that is simply not the case and never has been. Let me give you a few examples of fair trial concerns in those courts to help you put the criticisms of the ICT into perspective: One of the criticisms of the ICT is that is has not satisfied the procedural rights relating to pre-trial detention. If this is correct then the procedures should be reviewed. But when we look at the other courts we see far greater violations. In Cambodia, the first defendant had been held in illegal detention by a local military court for over 8 years prior to his transfer to the Khmer Rouge Tribunal. But contrary to fair trial norms and the expectations of human rights organisations, he did not receive any form of relief from this UN assisted court to compensate him for the breach of his rights. Another example relates to the speed of the judicial process. According to fair trial principles, every defendant has the right to be tried without undue delay. Provisional detention, meaning prior to conviction, may become arbitrary if it goes on for too long. Yet at the Rwanda Tribunal, around 15 defendants were held in detention for over 10 years before the verdict against them was delivered; and two had to wait in detention for 16 years before being judged at trial. Even at the permanent International Criminal Court - which had the benefit of coming after the ad hoc tribunals - the first defendant had to wait in detention for almost 7 years before receiving a verdict, and that was on relatively minor charges. It is difficult to see how periods as long as 16 years can satisfy the defendants right to a speedy trial. Another criticism is that some of the crimes being tried at the ICT lack precise definition. This is a matter that deserves serious consideration. But a lack of precise definition - both of the crimes and the modes of liability - has been a common feature at all the other tribunals, especially before the first judgments have been delivered. The Yugoslav Tribunal judges created an entire new theory of liability - called joint criminal enterprise - that had not even been mentioned in its Statute, let alone defined. And several defendants were convicted under joint criminal enterprise without it even being mentioned in the indictment.

Another UN court that prosecuted persons for crimes that lacked specific definitions, was the Special Court for Sierra Leone. In that court defendants were convicted for
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the crimes of forced marriages and conscription of child soldiers, prior to any existing definition.

These are just a few examples of the fair trial challenges faced at war crimes courts around the world. It is remarkable to me that certain actors and organizations are more comfortable criticizing the ICT which is trying to achieve so much with so little than they are criticizing the international tribunals, which have achieved so little with so much. This is not to argue that the practices described above should be taken as the benchmark. The ICT should seek to avoid the problems seen at the other courts and aspire to higher standards. But they do provide some context to the criticisms, particularly when you consider the tremendous resource advantages that the other courts have over the ICT. So it is important that outside observers put their criticisms into perspective, rather than jumping to conclusions that the whole ICT process is doomed. Trials involving war crimes, crimes against humanity and genocide are extremely difficult to administer, it has always been a matter adapting and improving, and none of the war crimes courts - however wellfunded - have administered flawless trials or managed to fully meet the expectations of the parties, the public, or human rights organizations, let alone the victims. In fact at all the courts there have been major fair trial concerns and serious disappointments as the judges and lawyers alike have struggled to deal with the novelties and complexities of mass atrocity cases. Yet despite all the challenges and imperfections and disappointments, these processes of accountability have been worth fighting for. Not only do they bring serious perpetrators to justice, but they also help societies turn the page and help people to move forward with their lives. When discussing judicial procedures, it is always worth remembering that procedural fairness is crucial for both the accused and the victims. Not only does fairness help ensure that the court reaches the right verdict, but it also helps to legitimize the process and to counter any improper attempts to discredit the court. What determines the successes and failures of a tribunal is not the quantity or validity of the criticisms, but how those responsible for the difficult task of prosecuting and adjudicating the crimes respond to the legitimate needs of justice.

Conclusion From a historical point of view, proceedings dealing with international crimes are a unique opportunity to clarify pivotal historical events on the basis of a thorough examination of available evidence, and within the context of an adversarial debate. Arguably, no other environment can create comparable conditions for reaching objective conclusions on key historical questions. If the judicial process is managed well, the benefits can be felt for generations to come. Those involved in these important endeavors must not become
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overwhelmed by the challenges or disillusioned by the criticisms, but must continue to strive to make sure that justice is done. Over the last 16 years - despite the often sensitive political environment in which it had to operate this Museum has worked tirelessly to keep the memory of the Liberation War alive and to provide some comfort to the many victims and their families. I have no doubt that the Museum has and will continue to serve as an inspiration to countless other projects around the world dedicated to truth, memory, and justice. It has been a real privilege to speak to you today and to be able to express my congratulations to the Museum for its tremendous achievements. Dhaka, 22 March 2012

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International Criminal Tribunal (ICT): Responding to its recent critics Professor Rafiqul Islam
Two recent reports on ICT by the UN Working Group and Aljazerra have attracted national and international attention. They show their sensitivity to the pre-trial custody of the alleged accused facing trials and insensitivity to the pursuit of justice for the victims. Working Group: Its Opinion No. 66/2011 (Bangladesh), submitted to UNHHR on 6 February 2012, states that after more than one year in pretrial detention ... the defendants have not yet been formally informed of the charges (para 42). It makes the final deposition that such detention is arbitrary and constitutes a breach of Article 9 of the UDHR and Article 9 of the ICCPR, falling within category III of [arbitrary detention] cases submitted to the Working Group (para 43). The report is a response to communications submitted by the defence in the trials on behalf of 6 specified detainees, namely Motiur Rahman Nizami, Quader Molla, Kamaruzzaman, Ali Hasan Mujahid, Delwar Hossain Sayedee, and SQ Chowdhury (paras 3-33). The Working Group forwarded these communications on 12 September 2011 to the government, which did not respond or refute the allegations in the communications (para 40). So the defence arguments in the communications, without any inputs from the government, formed the sole basis of the opinion. This contextualisation of the report is crucial, which clearly renders it one-sided by any standard. The two yardsticks used are UDHR and ICCPR. UDHR has its own merit and moral force but, being a UN General Assembly declaration, is not binding for any country. Being a party to ICCPR, its provisions are applicable to Bangladesh, which has a right to respond but not exercised. In order to be arbitrary, a detention must be indefinite and lack of predictability. This requirement is consistently been advanced by a whole range of decisions by the International Human Rights Committee exemplified by A v. Australia 1997 (para 9.2). Indefinite and unpredictable detentions become arbitrary when no charges are framed and trial commenced, such as the detainees in Guantanamo and other secret prisons in various parts of the world controlled by CIA under its rendition program of tortures. After ten years, there are Guantanamo detainees without charge and trial and the US is likely to use them as trade-offs in its ongoing talks with the Talibans. There appears to be no particularised report, like Bangladesh, by Working Group on arbitrary detention in Guatanamo, except a general one which is barely more than a whisper and far less than a roar. Alleged perpetrators of international crimes are usually taken into custody on the basis of a prima facie finding, which is conclusively proved beyond doubt in trials. This explains why high profile heads of states like Pinochet (Chile), Milosevic (Yugoslavia), Karadzic (Serbia), Taylor (Liberia), and many others had either spent, or are spending, a substantial period of time in pre-trial custody. The UN Criminal Tribunal for Rwanda has detained some of its suspects for more than 10 years (Radio Netherlands Worldwide, 15/2/2012). The UN-Cambodia Chamber held the alleged genocide perpetrators for more than one year before the commencement of formal trials. Has the Working Group produced any report on these tribunals' pre-trial detention as arbitrary? The answer is no. Have these tribunals, despite their UN involvement and a big
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budget, detained arbitrarily? Certainly not, because gathering and presenting admissible evidence in trials of international crimes is more challenging and time-consuming than that in domestic criminal trials. The ICC is yet to give judgements in trials commenced 10 years ago. The 40-year old Cambodian and Bangladesh cases are doubly difficult for any prosecution. Every international crimes tribunal, including the ICC, commenced with a cautious approach. Once it kicks off, it gathers pace and momentum. The past legacy of the commission of crimes in wars was a by-product of power and weapons to effect the contemptuous subordination of enemies. Their legal governance was marked by ambivalence and silence. The emergence of powerful human rights movements to end the impunity of gruesome international crimes within the corpus of norms and criminal prohibition is of recent origin. It is strategic for war crimes trials to be gradually progressive and somewhat guarded. This was precisely the environment in which ICT started, which is fast maturing and improving. There is absolutely no reflection of these reality checks in the report. Pre-trial custody for more than a year, claimed in the report, is not unusual and necessarily arbitrary in view of the examples cited above. Its assertion that the accused has not been informed of the charges against them was not true when the report was submitted on 6 February 2012, when Sayedee's trial of formal charges was well underway with witness examination and cross-examination and others' charge-framing hearing ongoing. Both prosecution and defence sought and got additional time for preparation, causing delay. Detention will certainly come to an end by conviction or acquittal. ICT is fully a domestic tribunal of Bangladesh which, being a resource-constrained LDC, has been trying its best to conduct these trials as fairly and speedily as one can realistically expect from LDC standards. The civil society has brought to bear considerable pressure for speedy trials. Apart from its election pledge, the government has repeatedly made public commitments to expedite the process with the announcement of another tribunal soon. The Prime Minister on 3 February 2009 requested, through the UNDP Representative and UN Coordinator in Bangladesh, for UN helps holding the trial. Bangladesh has received no UN assistance whatsoever. The report's final deposition does not say that Bangladesh has violated international law, except an oblique reference that in international law, detention prior to conviction should be an exception rather than a rule (para 39). Pre-trial detention in exceptional cases does not violate international law. Ample precedents exist testifying that alleged war criminals usually fall in the exceptional category. There are no international legal criteria or standards to be followed in determining exceptional cases, which vary from case to case, tribunal to tribunal. All alleged accused in Bangladesh are placed in detention by ICT orders in view of the prevailing circumstances a judicial decision which is difficult to evaluate politically. This explains why the report has not raised it expressly in its deposition. AlJazerra report: Its report of 15 February 2012 is a rickety affair with distorted facts to confuse public, motivated agenda to undermine ICT, and speculative conclusion to frustrate Azam's trial. It says that the Working Group report concluded that the detention of Azam and others as arbitrary and in breach of international law. The Working Group report is all about others 6 mentioned and makes no mention of Azam anywhere. The claim of breach
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of international law is yet another manipulation explained above. Azam is charged not as a former Islamist leader but for his alleged commission of war crimes in 1971. It not the belief of ICT that Azam collaborated with Pakistan army but the history and Azam's record speaks louder than what the reporter is inclined to hear. Of course the crimes were committed more than 40 years ago. So did the Cambodian genocide in 1970, which are now on trial. Even today, trials continue for crimes committed during the Second World War. Excesses of the reporter's imaginative journalism abound. The claim that the 89-year-old Azam cannot walk, cannot see, nor can he really hear has been refuted by his medical team (DS 17/2/2012). His age is no bar to face trials. All four accused in the Cambodian trial are aged between 85 and 88 years. Ieng Thirith, a woman of 86 years old, was found medically unfit for trial in November 2011 but the Cambodian Chamber held that her health could improve during trials. Demjanjuk was 89, suffering from leukaemia, a trapped nerve, and gout, extradited from the US to face Nazi war crimes trial in Germany in 2009 and he was brought to the court in a wheelchair. I can prepare an endless list of war criminals, who face trial at around the same age as Azam (viz Boere 88, Storms 90, Hajda 85, and Scheungraber 90). The reporter's speculation that Azam's punishment would be at the price of throwing Bangladesh into further political instability is preposterous. It ignores the overwhelming popular support for the trial expressed in the 2008 election. Not to try the alleged accused can trigger serious political unrest. The reporter is inherently dismissive of Azam trial, blatantly biased, and profoundly unprofessional. AlJazerra's defence is its right to freedom of expression, which wants us to listen to things that we dislike or views that we disagree. But freedom of expression must be balanced by its accompanied obligations. There is no legal right with duty-free application. AlJazerra's reporter has interrupted this balance through inconsiderate, provocative, and irresponsible media casting in public domain. The media right to freedom of expression must be guarded not only against its deniers and suppressers, but also against those who use it cynically and deliberately, like Nicolas Haque, as a licence for voluble bullies and stratagems to assault on the feelings and rights of the overwhelming silent majority seeking justice. Prosecution, conviction, and punishment of perpetrators of international crimes are on the increase. The international community and the UN have been in favour of ending the impunity and immunity of these perpetrators by bringing them to justice. Amidst these developments, these two reports have failed to endorse, not even in principle, any need to render justice to the victims of the 1971 war crimes. Such a positive approach with recommendations for improvement in ICT's performance would have been rewarding for Bangladesh. Instead, they ill-conceived the facts and unduly pursued a heavy-handed and partisan approach that serves the sectarian interest of those subverting the course of justice. Why are these reports on ICT and not on other tribunals with long pre-trial detention and trials of ageing with ailments? Can the Working Group and AlJazerra answer why are only the Africans prosecuted before the ICC with no decision yet in 2012 for trials it initiated in 2003? This is a price one has to pay for being poor, powerless, and voiceless in asymmetric global power-games. Bangladesh was born defying formidable resistance. Given the
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resources, lobby, and connection of the alleged accused and their allies nationally and internationally, relentless opposition to ICT for immunity to prevail over justice is expected. The quest for justice heeds only constructive, not lacklustre and gerrymandering, criticisms. 25 February, 2012
____________________ The writer is Professor of Law, Macquarie University, Sydney, Australia.

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Lobbying to prevent justice? Arman Rashid

A recent article published in St. Louise Today, titled Missourian in quest to free Bangladeshi newspaper owner from jail, by Mr. Bill Lambrecht, talks about the current lobbying campaign against the International Crimes Tribunal (ICT) of Bangladesh, led by a Washington based lobbying firm Cassidy and Associates and its chairman Mr. Gregg Hartley. This article describes the campaign to free Mir Quasem Ali, owner of a newspaper and a leader of Jamaat-e-Islami, who is currently in custody for war crimes in Bangladesh. While this article merely quotes Mr. Hartley and certain other critiques of ICT, it ignores certain other facts and clearly demonstrates either a bias or a lack of information that I will highlight in this writing. A more unbiased title could have been Missourian in quest to free Bangladeshi accused war criminal from jail, which would have been closer to the truth. The article asserts that Mr. Alis political affiliation with Jamaat-e-Islami played a major role in his arrest. It is important to distinguish whether this political affiliation was the cause of his arrest or the cause of his alleged engagement in the war crimes during 1971. In order to understand this political affiliation, readers should know the current role of Jamaat-e-Islami in Bangladesh. This Islamist party is in the forefront in spreading religious fundamentalism, Islamic extremism, anti-Semitism and widespread hatred against racial and religious minorities in Bangladesh. They are also the primary advocates of replacing the current secular constitution with Shariah laws. These political views led many of the leaders and supporters of Jamaat-e-Islami to conduct heinous atrocities, in the name of Islam, during the Liberation War of Bangladesh in 1971, which resulted in the deaths of millions of civilians and the rapes of 200-400 thousand women. So, while these crimes may very well have been motivated by political affiliations or ideological stance, the current tribunal is prosecuting them as individuals for their individual crimes. It must be highlighted that while Mr. Gregg Hartley is lobbying for the accused war criminal, his primary motivation to push this cause is instigated by a $500,000 fee as mentioned in this article. It is important to note that this lobbying campaign is not funded by any human rights group, but financed by an accused war criminal and his family. Other than mentioning the amount, the article does not probe how Mr. Ali or his family managed to transfer such a large sum, circumventing Bangladesh Governments strict regulatory policies regarding foreign currency remittances, without violating any local or international money laundering laws. Even though the legal obligation for the lobbying business doesnt require having an ethical agenda, the question still remains how a lobbying firm can legally take a case with the agenda of influencing, impeding or, more importantly, delegitimizing an ongoing judicial process. I am curious if it would have been legal for Cassidy and Associates to be engaged by OJ Simpson for the purpose of freeing Mr. Simpson by influencing the trial or its proceeding through lobbying efforts. Even though the lobbyists are not ethics bound, the politicians surely are. People will surely remember who among their lawmakers end up taking the sides of accused war criminals. I am sure that the Bengali community, all over the US, will be closely watching how many house representatives and senators join this campaign and will surely remember them at the time of their next elections. Even though Mr. Hartley claims that his client Mir Quasem Ali is arrested only because of his anti government criticisms through his newspapers and television channels, Mr. Hartley fails to show why the current accusations against Mr. Ali are baseless, especially when Alis
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own defence team admits that, during the war in 1971, he was a member of a pro-Pakistan militia while in his 20s, as mentioned in this article. Isnt it up to the tribunal to decide the depth of his engagement based on testimonies and evidences? Since Mr. Harley is not a lawyer of the defence team, only a lobbyist for the people who can afford him, regardless of their background, to gain access to his political connections, I guess he is only doing his job and it is unfair for me to ask him that question. However, in the article Mr. Alis son Mir Ahmed was quoted that their newspaper, Daily Naya Diganta, is the only newspaper vocal about the injustices by the ruling regime. Anyone familiar with Bangladeshi newspapers and media channels knows, there are at least another half a dozen newspapers in the country that are equally harsh in criticizing the current government as the Daily Naya Diganta, and their owners are not being arrested with the accusations of war crimes. So the allegation of Mr. Ali being arrested because of his media outlets doesnt hold much water. While this article quotes Reporters Without borders for ranking Bangladesh 129th out of 179 countries, evaluated for their freedom of press, the author conveniently ignores that it is still a lot better than India (131), Israel (133), Russia (142), Mexico (149) and Pakistan (150), even USA is ranked 47th in that index, which is a even lower than some of the third world countries in Africa such as Niger (29), Ghana (41) and Botswana (42). The author also ignores the fact that, according to the same organization, this ranking for Bangladesh actually improved during the current administration (2008-2012) compared to the prior governments. So, using the same credible sources as the author (i.e. Reporters without Borders), how can it be explained that the current government is cracking down on the press for their criticisms, as the article was trying to insinuate, and at the same time the overall raking for the freedom of press is improving in the country? The article also points out the recent killings of reporters in Bangladesh. Journalism is indeed a dangerous occupation there, and many journalists were murdered in the past few decades, but how many (if any) of those murders were state sponsored? I fail to see the relevance of this anecdotal information in this article, unless the author is implying a link between these murders and the alleged state policy for media suppression. Anyone doing any bit of homework on this subject will know that many of these journalists in the past were killed, because of their secular views, by the same religious extremisms preached by Jamaate-Islami in which Mr. Ali is a prominent leader. The article also refers to the criticisms against ICT made by certain individuals and organizations, but it fails to indicate the existing challenges for those criticisms. For instance, Mr. Stephen Rapp, the US ambassador at large for war crimes, was heavily criticized for recommending the ICT to adopt the Rome Statue, a legal framework for the ICC (International Criminal Court), when he clearly knew that the ICT is not an international court but a domestic one, the statue did not have the jurisdiction to prosecute crimes that took place prior to 2002, and, most importantly, when his own country, United States, is neither a signatory member of the Rome Statue, nor is it compliant to many of its provisions. Human Rights Watch, another organization that the article quotes, was also criticized for publishing a report alleging Bangladesh government for intimidating defence witnesses at a time, long before the names of the witnesses were disclosed to the ICT and when the government or the prosecution team didnt have any way of knowing who those defence witnesses are.

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Similarly, the UN group for arbitrary detention, another group the article refers to, was also criticized to publish their report based on the claims from the defence team alone, without any known independent investigation on their part, when the Bangladesh government failed to respond to a letter with those allegations. So, while by referencing these criticisms the article shows how this lobbying campaign against justice is gaining steam in the international community, it fails to scrutinize or even question the legitimacy of any of those criticisms. Many of the accused war criminals in ICT are current and former leaders of different political groups. But does that make these trials political? In order to understand that, one must look at the history of Bangladesh and the birth of this tribunal. Soon after Bangladesh won its independence in 1971, there were many outstanding accusations against the currently accused war criminals, so they fled the country to evade prosecution. The first war crimes tribunal was created under the 1973 act, which prosecuted and convicted many, between 1972 and 1975. Unfortunately, in 1975, with the murder of the national leader in a military coup, the subsequent dictators dismantled the tribunal and released all the war criminals, even the convicted ones. It was in this political atmosphere, many of the currently accused war criminals were able to return to Bangladesh, assimilate in the political arena to strengthen and legitimize the dictatorship. After overthrowing the last dictator in 1990, democracy was resurrected in Bangladesh and the victims of 1971 could once again voice their demands to bring those perpetrators to justice. Slowly their voices were strengthened and this demand became a national outcry for the people of Bangladesh. Unfortunately, in the current political atmosphere, while BNP (Bangladesh Nationalist Party), the other prominent party besides Awami League, is currently in a coalition with Jamaat-e-Islami, which was led by these accused war criminals, Awami League became the only hope to ask for justice for the victims of 1971. In 2008 national election, Awami Leagues landslide victory was primarily contributed to this national mandate for bringing an end of impunity for the war criminals. After the election, the current government amended the 1973 act, allowing more rights and civil liberties for the accused in accordance to the ICCPR, and then created this independent tribunal to fulfil their pre-election promise and to address this national mandate. The victims of 1971 can finally see some hope for justice after waiting 40 long years. So, even though the birth of this tribunal was only possible through a campaign for justice and a democratic political process, people who voted in 2008 election and expressed their demand through their ballots, do not think these trials to be politically motivated. In order to keep their promise, the Awami League took a huge risk considering the ominous political unrest, backlash and turmoil these trials can instigate, but we are still glad that they took that risk for the sake of justice and ending impunity. Now we can only hope that the administration will continue their support for the ICT and endure the storm clouds that are looming in the horizon. December 10, 2012
Arman Rashid is a Toronto based writer, blogger and campaigner for justice for the crimes committed in 1971.

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Toby Cadman: A crusader for rights or devils advocate? Shah Ali Farhad
The International Crimes Tribunal (ICT) is not new to criticisms. Since, its inception it has been subjected to sustained and persistent criticisms both from the domestic as well as international quarters. And to be brutally honest, some of these criticisms do have some substance. Nonetheless, one must concede for the sake of being fair to both sides that some of these criticisms have ranged from being a bit overstretched to being downright absurd. However, that is not the focus of this write-up, although it was originally supposed to have been. I was researching the web for writing an article on the ICT comparing its workings with other war crimes trials currently operating in the world as well as ones which have been concluded in the past. But, the concentration of my research changed somewhat when my search came across one name over and over again: Toby Cadman. I noticed Mr. Cadman is not only the principal author of materials on the ICT, but also a principal subject of news reports himself in this area. This struck me as somewhat strange, as being a barrister myself, I know for a fact that barristers are not much media savvy and rarely would one find the name of any barrister frequently in media reports, notwithstanding his professional fame or prowess. This is not due to any social handicap that we barristers suffer from, but because it is part of our professional etiquette not to express personal views in the media about any case. Thus, I decided to follow the trail of materials and news reports. What I found was not only astonishing but frankly shocking. Firstly, it is important to address the primary question: Who is Mr Toby Cadman? Mr. Cadman is a barrister specializing in international criminal law, with particular knack for such areas as war crimes, international terrorism, extradition, judicial review, prison law and human rights law [1]. Thus, when someone with his skills and expertise writes and speaks on a war crimes tribunal, there is never any doubt as to his credentials. However, credentials and credibility is not one and the same thing, and the former on its own cannot establish the latter, and therein lies the predicament. Regarding Mr Cadman vis--vis the Bangladesh ICT, his other role is that, as of October 2010, he has been instructed with Steven Kay QC and John Cammegh (his colleagues at 9 Bedford Row International, a barristers chambers in London, UK) by Jamaat-e-Islami to represent their high ranking members currently being prosecuted by the ICT for war crimes committed in 1971 [2]. Hence, he is in laymans terms, the paid attorney for the defendants being prosecuted by the very Tribunal he is seen criticising in every conceivable forum at every possible opportunity. It does not take a rocket scientist to come to the conclusion that there is a very strong case for conflict of interest whenever Mr. Cadman would try to portray a perception of neutrality, having us believe that he is somehow an independent expert in this matter with no interests in its outcome. Mr Cadman however, is simply not a specialist in war crimes. He is a man of many talents. He is simultaneously a lawyer, a lobbyist (he himself has admitted that and in any event it is quite obvious from his conduct as well as shall see), an activist (quite apparent from his activities as we shall see) and an academic (from the amount of literature he generates on war crimes in general and the ICT in particular). One cannot help but be astonished at how multi-talented Mr Cadman is, and I am not being sarcastic here.
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His skills as an international lobbyist compels him to fly to various cities like Jeddah to press upon individuals/governments who have influence to pressurize the Bangladesh government, to either stop the trials altogether or at least undertake (as he claims) much needed reforms at the ICT. Mr Cadman chose his forum quite well, as there are millions of Bangladeshi unskilled workers employed in the Middle East, who send billions of dollars every month back to Bangladesh. Export of unskilled manpower is actually one of Bangladeshs biggest export sectors. Moreover, the Arab region is a diplomatic and political stronghold for Jamaat. Not surprising given that Jamaat is an Islamist party. Thus, if any region has the ability to hurt Bangladesh where it hurts most, the purse, it is the Middle Eastern regions. Very effective tactic on part of Mr Cadman, but a low blow nonetheless. He has mounted similar appeals to the European Union (EU), the Organization of Islamic Conference (OIC) and the United Nations [3]. Mr Cadman is also quite adept at international diplomacy. He has said that if Bangladesh presses ahead and convicts the accused through these trials: the consequences will be grave: the country will be diplomatically isolated. Quite a strong prediction, given Bangladesh is trying its own war criminals, in its own tribunal, pursuant to its own laws, financed by its own resources and mandated by its own electorate. Even if these trials leave much to be desired in terms of the standard of to be expected from an ideal judicial proceedings, nonetheless, even its strongest critics would probably fall short of saying that carrying out any sentences which may be passed by a legitimate tribunal would render a country a diplomatic pariah. If the legitimacy of high profile trials could render a country isolated, then Iraq would have been isolated completely after Saddam Husseins trial or Israel after the trial of Adolph Eichmann. Mr Cadman has also demonstrated that he is somewhat of a prophet too, particularly one who makes grave and dire prophecies. Speaking to the Saudi Gazette [4], Mr Cadman made some interesting predictions regarding the fate of his clients. He said that some of his clients would be executed before the 16th of December, and the others before 25th of March the year after. 16th December and 26th March are symbolic dates for Bangalis as they celebrate their Victory Day and Independence Day respectively on these dates. I am curious to know how Mr Cadman comes up with such precise predictions. Whether these prophecies hold true or not only time can tell, but for the time being his predictions stand thus: a) All his clients are bound to be convicted; b) Death penalty would be imposed in respect of each and every one of them; and c) The dates of their executions are confirmed. Unless Mr Cadman has figured out a way to see into the future, or has been confirmed of the future convictions and sentences of his clients by the ICT itself, I find it difficult to pay any heed to such unsupported claims. The problem is, whether or not these predictions have any substance, they nonetheless contribute towards generating an overall negative perception against a justice process which a whole nation holds dear. However, that is not the limit of his talents. His versatility includes a flare for public speeches at political rallies. He appeared and gave a speech at the East London Mosque, organized by the so-called Bangladesh Crisis Group (which is in fact simply an offshoot of Jamaat-eIslamis British chapter Islamic Forum UK) on the 3rd of October 2011 [5]. This rally was co-organized with groups of dubious and questionable allegiances, such as the Muslim Brotherhood. In fact, the rally was chaired by one Kemal Helbawy, someone who mourned the death of Osama Bin Laden! Note this part of his speech where he commented on the political climate of Bangladesh generally: The complete breakdown in democracy, the barring of freedom of expression and freedom of assembly. Its difficult to say whether I am
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listening to a barrister working on a case or a rhetorical political speech being given at Paltan Maidan (a famous place for political rallies in Dhaka) by the leader of Bangladeshs opposition. It is quite clear that Mr Cadman is extremely passionate about his clients. Perhaps a bit too passionate for a barrister. He has made his point quite clear, that being; his clients are not getting trials of the standard they deserve. However, no matter what ones personal stance on the case maybe, members of the bar are trained for obvious reasons, to maintain their independence and objectivity under all circumstances. His passion was noticeably felt clouding his judgment and compromising his objectivity when flouting all rules, professional decorum, and procedure Mr Cadman and his colleagues at 9 Bedford Row International sent a serving judge of the ICT (its Chairman) a personal email asking the judge to recuse himself from the trials for apparent bias [6]. The court itself expressed its dissatisfaction at this conduct and felt that it was contemptuous of these barristers to raise such a matter in such an inappropriate manner considering that a formal petition for recusal by the defence was pending as a scheduled item to be heard in the open Tribunal two days later. They also identified couple of breaches of the Code of Conduct for Barristers in England and Wales and referred the matter to the regulators of barristers, the Bar Standards Board. Regarding this incident, the following struck me as very inappropriate behaviour on part of Mr Cadman and his colleagues: First, they were acting without the lay clients permission or instruction, given that Mr Sayeedee on whose behalf they claimed to act flatly denied any knowledge of such application or even the knowledge of instructing them even; second, they were being disrespectful to a current serving Justice of the Supreme Court of Bangladesh, by asking him to recuse himself by email correspondence. A barrister of his stature should have been mindful of the fact that what they did was simply not the way to communicate with a serving judge. Now, Mr Cadman and his colleagues would have us believe that they were very respectful in their language, which they were to be frank. However, such a defence fails to address the point that the disrespect stems not from the language itself but from the overall manner in which they conducted themselves vis--vis such a senior judge; third, they were being completely disregardful of the tribunals procedure, by communicating such a formal matter as application for recusal of judge by email and not following the appropriate channels; and finally, and most disturbingly, allowing a copy of the letter to be disclosed to the media before it could be considered by the tribunal. Not only that, suspiciously enough the media outlet getting a hold of the copy and publishing it before it could be perused and decided upon by the ICT was none other than the Daily Sangram, the de facto mouthpiece of Jamaat [7]. This had the effect of undermining the judges duties in public and serving as a source of major embarrassment for a serving Justice of the Supreme Court. Whether this was done by Mr Cadman and his colleagues deliberately, or without their knowledge by some other vested quarter, is immaterial. As counsel, they should have been mindful of the confidentiality of communications. Guarding against improper disclosure was undoubtedly their responsibility. This is especially true given that the correspondence was made in the official letterhead of 9 Bedford Row and was signed by all three barristers in question. Hence, the blame flatly lies with them, notwithstanding that it may be shared by others too. More fundamentally however, it needs to be asked whether it was actually necessary to go through such an extreme and potentially contemptuous manner of making your objection heard? This incident happened when the local defence team of Jamaat had already filed an
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official application with the tribunal on the same subject matter. It was a pending matter which was fixed for hearing on a certain date in open court, rendering the whole email incident completely and unnecessary. One can only speculate as to the benefits to be gained by their clients from such a highly unorthodox move, apart from gaining irk of the tribunal. Although, the complaint against the three barristers including Toby Cadman has been dismissed by the Professional Conduct Committee of the Bar Standards Board in respect of the allegations of two specific breaches, this however does not clear their name completely in my eyes. Mr Cadman would have us believe that this rejection by the Committee somehow shows that he was fully within his rights in doing whatever he did, however, one should also note that the Committee considered only two specific allegations put forward by the tribunal and did not award an overall bill of clean health to Mr Cadmans conduct generally. The tribunal had mentioned the issue of contempt of court, but allowed the allegations of misconduct under British professional rules be investigated first. Thus, the issue of contempt of the tribunal is still left unresolved and technically there is a chance that the matter be recalled for determination once the workload of the tribunals have lessened somewhat. I feel however, that Mr Cadman should count his blessings that the tribunal was kind enough (or not vengeful enough) not to prosecute him and his colleagues for contempt of court, since in my opinion, his conduct in this email fiasco clearly crossed the contempt threshold as per the prevalent laws of Bangladesh. In UK too, it is arguable that Mr Cadman and his colleagues conduct would have been found as tantamount to contempt of court. If improperly communicating with a juror or shouting at a judge can be a contempt of court, by analogy, being disrespectful to a judge out of court (as in improperly communicating with the judge, telling him to step down by email) should also be considered contempt in my opinion [8]. However, unfortunately, what Mr Cadman makes up in passion, he clearly lacks in his hold of history and current affairs. For example, in an interview to Arab News [9], Mr Cadman opined that targeting a reputable Islamic party like Jamaat will have dire consequences and will affect Bangladeshs reputation in the Islamic world. Such a comment is objectionable because it presupposes the positive reputation of Jamaat, an Islamist party which openly participated in the atrocities of 1971 and currently serves as an umbrella political front for all Islamist extremist groups in Bangladesh. It was founded by Maulana Maududi, someone credited with the spread of the strict fiery band Deobandi/Wahabi version of Islam. In fact, it is widely accepted that his teachings greatly influenced the Grand Ayatollah Khomeini of Iran. This demonstrates Mr Cadmans shortcomings in his knowledge of history. Perhaps, before he gives any such glowing but clearly wrong reference for the undeserving, Mr Cadman would be better advised to visit the local library or at the very least conduct a Google search on South Asian history in general and the history of Jamaat in particular. I am sure he would find it amusing, especially when he comes across the fact that Maududi, whose party he so adamantly defends not only legally but politically too, is known to have equated the legal profession to that of a prostitute, being individuals who would do anything for money. He further commented that It (the government) is actually punishing the Jamaat for siding with the last BNP government. It seems Mr Cadman is not aware of the recent political realities underpinning these trials. The Awami League government came to power in 2009 through a landslide victory principally on the promise of trying the war criminals. If it didnt,
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it would have been shown the door by the general populace long ago. Whatever the Awami Leagues motivation maybe, trials of the war criminals is at todays date, a national demand. To say, that these trials are motivated by the urge to punish Jamaat for siding with the BNP in the last elections, belittles the huge loss Bangladesh suffered in 1971 and the willingness of the people to bring the perpetrators to justice. It also shows a blatant disregard for the public opinion as evidenced by the resounding endorsement in the last general elections the government received for holding these trials. It is good to protect ones clients interests fearlessly, as required by the Code of barristers, but it has to be done by using all lawful and proper means. It is arguable that such insensitive comments undermining the struggle of a nation to bring to an end its worst chapter in history, does not fall under the definition of proper in any dictionary. Although I am not sure whether he is motivated by a need to be in the limelight or genuinely helping his clients cause, one thing is certain, he certainly believes in taking the fight to the opposition. This is visible from the amount of interviews and statements he gives all the time to all forms of media discrediting the ICT. In addition to the print media (mostly Arab ones) and TV news channels (Al Jazeera seems to be his favourite among them) Mr Cadman is fighting the battle for his clients quite vigorously in the social media scene as well. He likes to upload videos of himself in various interviews, seminars and rallies in Youtube by his own account (tobycadman) or his chambers (9BedfordRow) [10]. He maintains a page in Facebook, titled Toby Cadman Barrister-atLaw, the recent posts in which have almost exclusively concentrated on the ICT and its apparent flaws [11]. His criticisms in these posts are often seen as clearly exceeding the boundaries of his case, and treading on extremely sensitive and potentially dangerous political territories. For example, note this post he published in his page on 19th November 2012: US Ambassador appeals for calm and rational dialogue Members of the Government Bangladesh rejects any dialogue and once again focuses on the war crimes trials. Government fast becoming a single issue political party. Apart from this, he has made posts commenting on the Prime Ministers statements. He wrote: Bangladesh PM speaks of ensuring the trials take place and the duty of the Government to punish. Actually, its the duty of the judges to try the cases and if convicted to punish the perpetrators Maybe Mr Cadman failed to understand that the premier was simply reassuring a nation that they were committed to the trials, and no amount of bullying by the powers that be can make it deviate from that commitment. In fact the PM was technically correct in stating that it is the governments duty to punish. By the word punish she was obviously referring to carrying out sentences, which is indeed an executive act, as opposed to judicial. Judges only convict (or acquit) and sentence the convicted, they dont punish. Mr Cadman, being a senior, must have known that. He also made a comment regarding the credibility of the Chairman of Bangladeshs National Human Rights Commission: Chair of the Bangladesh National Human Rights Commission has lost all credibility following his recent remarks. He is supposedly the head of an independent human rights monitoring body and he speaks of the Rohingya issue as being connected This statement about the Chairman of NHRC also illustrates his ignorance about long standing human rights track record of the person he was criticizing. A quick reading of human rights literature that have been generated in Bangladesh in the last 25 years will surely enlighten him, and possibly even surprise.

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He uses his twitter account for these ends too. For example, note this post made by @tobycadman [12]: Bangladesh is in great danger of stepping back into a period of communism where any dissent is punished harshly. Freedom of speech at risk (7:55 PM 19 Feb 12). Such comments are reminiscent of the red virus America suffered during the cold war era under the aegis of the fear mongering J Edgar Hoover. All I can and will say against this fear mongering is this: Rest assured Mr Cadman, we Bangladeshis are a very politically conscious nation and would do whatever is necessary to guard against any such red invasion. Mr Cadman is also quite adept at misinterpreting historical events for garnering support for his version of the story. In his interview to Arab News, he referred to a statement made by Sheikh Mujibur Rahman (SMR) that Bangladeshis are a forgiving nation and that Bangladesh should look to the future not the past in the interest of peace and reconciliation. He added that this was principally the reason for the trials being abandoned in 1973 and resulted in a tripartite agreement between India, Pakistan and Bangladesh [13]. Such a comment reveals the following: first, Mr Cadman is himself aware that what Jamaat needs is not a fair and due process of law but an abandonment of the trials altogether. Given the overwhelming evidence against Jamaat and its leaders, no amount of fairness can save them from being officially stamped as something which the people have known and recognised for four decades. Otherwise, why would he bring up the issue of reconciliation? And second, Mr Cadmans knowledge of history of Bangladeshi liberation struggle is insufficient to say the least. The trials were never abandoned. There was simply not the political situation to hold these trials in those times. And before, they could be revived at the right time, Sheikh Mujibur Rahman himself was brutally killed along with most his family members by people either directly or indirectly conniving with those very war criminals. He simply took out one statement by Sheikh Mujib and clearly used it out of context for supporting his contentions. The statement quoted was made by Sheikh Mujib to calm a nation frustrated from nine months of atrocities and hell bent on taking revenge against the perpetrators of such atrocities. Sheikh Mujib, on multiple occasions stated and reiterated his commitment to bring the local collaborators and other war criminals to justice. And as for the tripartite agreement he mentioned, that had nothing to do with trial of local collaborators but simply provided that Bangladesh would hand over the last remaining 195 Pakistani POWs for them to be tried in Pakistan [14]. As I stated before, a visit to the library for some much needed South Asian history lessons is not only recommended for Mr Cadman but also necessary before he makes any such ignorant remarks. Fundamentally, it needs to be asked whether such a campaign based strategy for defending your clients exceeds the legitimate ambit of a defence and is in fact, tantamount to an obstruction of a judicial process, since it seems obstructing this judicial process is one of his aims, if not the main aim, in conducting all these public relations/public awareness/smear/hate campaigns on multiple fronts. In any event, such conduct begs the question: As a retained lawyer, should one concentrate on defending ones clients under the law with which he/she has been charged or undertake the monumental task of challenging the legal and political order within which that trial is taking place? It does not take a person with legal credentials to come to the conclusion that the latter is simply not the job of a retained lawyer. Maybe such a course would have been suitable if Mr Cadman returned his instructions, renounced his role as a British barrister and became a full time political activist for Jamaat.

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His tactics to popularise his clients cause are also not above question. Mr Cadman, in various forums, has often referred to his inability to enter Bangladesh in one occasion [15]. Mr Cadman came to Dhaka four times before this incident. He would have us believe that the reason he was stopped because he was representing Jamaat. If Mr Cadman has proof regarding what he claims to be the case, in the public interest, he should disclose it. Otherwise, Mr Cadman should be more careful before making any such serious allegations against the authorities in Bangladesh. Mr Cadman is often seen referring to comments and reports by international organisations to bolster support for his own views about the ICT. None more so than the opinion provided by the War Crimes Committee of the International Bar Association to the UKs All Party Parliamentary Human Rights Group, at whose behest the legal advice was prepared. Now, what everyone needs to know in this regard is Mr Cadman is himself a prominent member of that Committee [Communications Officer of the Committee]. Furthermore, the Committee has, as one of its members, Stephen Kay QC, his colleague and another counsel for Jamaat [16]. Thus, one cannot blame a reasonable observer for making the connection between that opinion and Mr Cadman. It is quite reasonable to believe that Mr Cadman was himself involved with the preparation of that opinion. Such a belief has not been rebutted by any claims or evidence to the contrary by Mr Cadman. Thus, for the time being, the position is thus: It is clear that Mr Cadman does not mind referencing himself. He would have us believe in the neutrality of a document, which was arguably prepared with his own active or tacit participation. As someone who always seems to hammer home the point regarding full disclosure, one can only say that one needs to practice what they preach. The intensity with which Mr Cadman is representing Jamaat reveals a passion second only to Andrew Buchans portrayal of the eighteenth century barrister, William Garrow, in the BBC series Garrows Law. From the discussion above alone, I could list multiple provisions of the Code of Conduct and Written Standards for Barristers, which have been breached by Mr Cadman in his conduct as the counsel for Jamaat in the ICT trials. And yes, these are quite distinct from the ones mentioned by the tribunal itself. Nonetheless, I have deliberately omitted to do so, since I figured it does not take a course in professional ethics of barristers to know that Mr Cadman has been improperly conducting himself as a counsel or at the very least performing duties for his clients far exceeding the usual job description of barristers. I can only hope, for the sake of my fraternity, that Mr Cadman takes note of such visible infractions and conducts himself with more decorum in the future. Otherwise, he will indirectly be hurting the interests of those he seems so adamant to protect, his clients. December 3, 2012
Shah Ali Farhad is a lawyer, lecturer, blogger, activist and campaigner for 1971 war crimes trials.

References:
1. http://tobycadman.com/areaofpractice 2. http://tobycadman.com/notablecases 3. http://www.arabnews.com/saudi-arabia/international-community-urged-stop-%E2%80%98summaryexecutions%E2%80%99-bangladesh

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4. http://www.saudigazette.com.sa/index.cfm?method=home.PrintContent&fa=regcon&action=Print&contentid=20121023 140629&simplelayout=1 http://www.a1saudiarabia.com/tag/toby-m-cadman/ 5. http://bangladeshcrisisgroup.com/index.php/news/69-bangladesh-state-terrorism-condemned-by-a-gathering-ofthousand-in-east-london 6. http://www.newstoday.com.bd/index.php?option=details&news_id=44374&date=2011-11-15 7. http://thenewnationbd.com/newsdetails.aspx?newsid=22857 http://newagebd.com/newspaper1/archive_details.php?date=2011-11-14&nid=40091 http://www.bdnews24.com/details.php?cid=2&id=211198&hb=top 8. http://www.findlaw.co.uk/law/criminal/criminal_courts/500317.html 9. http://www.arabnews.com/saudi-arabia/international-community-urged-stop-%E2%80%98summaryexecutions%E2%80%99-bangladesh 10. https://www.youtube.com/tobycadman 11. https://www.facebook.com/pages/Toby-Cadman-Barrister-at-Law/204833906272577 12. https://twitter.com/tobycadman 13. http://www.arabnews.com/saudi-arabia/international-community-urged-stop-%E2%80%98summaryexecutions%E2%80%99-bangladesh 14. http://www.thedailystar.net/forum/2010/may/curious.htm 15. http://www.google.co.uk/search?hl=en&newwindow=1&tbo=d&q=cadman+denied+entry+to+bangladesh&oq=cadma n+denied+entry+to+bangladesh&gs_l=serp.374509.83544.0.83742.38.35.0.0.0.0.385.3693.21j6j5j1.33.0.les%3B..0.01 c.1.mCYy-13BEd0 [Notice the number of entries where he refers to his failure to enter Bangladesh]. 16. http://www.ibanet.org/PPID/Constituent/War_Crimes_Committee/Officers.aspx

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Text of ICT prosecutors speech before South Asian Committee of EU parliament.

Full text of ICT prosecutor Advocate Zead-Al-Malums speech before EU Parliaments Delegation on South Asia explaining the nature of the International Crimes Tribunal, its operations, and the safeguards that are built within the process to protect the human rights of the accused who are now on trial. A meeting by concerned Members of European Parliament (MEPs) constituting the Delegation for relations with the countries of South Asia was held at the European Parliament premises in Brussels on 31 January 2012. The title of the delegation meeting was Bangladesh: exchange of views on the war crimes trials and on accountability issues, which was aimed at discussing some of the criticisms and concerns that have so far been raised by the defence and certain other groups before various national and international forums including the European Parliament. Among the invited speakers in this delegation meeting, Zead-Al-Malum, a senior member of the prosecution team of the International Crimes Tribunal, was present to respond to some of these criticisms and concerns and explain how the justice process in Bangladesh is actually operating to protect the rights of the accused, which the propaganda material forwarded by the defence do not mention. Among the other speakers, Mr Toby Cadman, who is serving the defence team as an international counsel was also present. The text of Mr Malums speech, which now forms part of the record of the EU proceedings on the matter, is presented below: ==================

Meeting on Bangladesh: Exchange of Views on War Crimes Trials and on Accountability Issues The Delegation for Relations for the Countries of South Asia 31 January 2012 Room Altiero Spinelli (ASP) 1E-2 European Parliament Brussels Presentation of Zead-al-Malum (Advocate) Prosecutor International Crimes Tribunal, Bangladesh ________________________

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Honourable Members of European Parliament, Excellencies, ladies and gentlemen: 1. First of all, let me thank the European Parliament, Members of its South Asian Delegation, for allowing me to speak before you, and also for your continued support for the justice process in Bangladesh. I recall with appreciation the European Parliaments number of resolutions including the one in 2005 reiterating support for the demand that those known to have participated in the massacre of Bangladeshi citizens and other war crimes during the Bangladeshi liberation war of 1971 be brought to trial. I thank you for that. 2. I also thank International Committee for Democracy in Bangladesh (ICDB) and Bangladesh Support Group (BASUG) for facilitating my participation and presence in todays important meeting before this esteemed panel. 3. It is indeed an honour to be here and speak on behalf of the prosecution team of the International Crimes Tribunal in Bangladesh. I will try to keep my presentation brief. The 1973 Act and setting up of the International Crimes Tribunal 4. As you are aware, it took 41 years to initiate this justice process to end impunity for the core international crimes committed in 1971. The then newly independent Government of Bangladesh passed a law called the International Crimes (Tribunals) Act in 1973 (hereinafter the Act) to investigate and prosecute the persons responsible for genocide, crimes against humanity, war crimes and other crimes under international law committed in 1971. The Act is a complete law in itself, providing the substantive law, definition of crimes, procedures to follow, provisions of evidence, constitution of the Tribunal, obligation of the Judges to be independent and to ensure fair trial standards, including the rights of the accused, rules to monitor investigations and interrogations, supervising arrest and viability of continued detention, rules to protect the witnesses and victims, rules regarding appeal after conviction, and the rule making authority of the judges etc. The Judges, Prosecution Team and Investigation Agency 5. Under the Act, the International Crimes Tribunal was set up by the Government of Bangladesh in March 2010 when the Judges of the Tribunal were appointed. Two of the three Judges are serving Judges of the Supreme Court of Bangladesh and the third Judge possesses 30 years of trial court experience at the district court level and is qualified to be Judge of the Supreme Court. At the same time, the Government set up the Prosecution Team and the

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Investigation Agency of the Tribunal and appointed Prosecutors and Investigators respectively. 6. The Prosecutors of the International Crimes Tribunal are all experienced lawyers with a significant number of years of court experience. They are well versed in criminal law and possess considerable expertise at handling criminal trials. In the past two years, these Prosecutors have also enhanced a great deal of understanding and knowledge over the theories and concepts surrounding international criminal law and how trials of persons alleged to have committed core international crimes, have been held across the globe. This has been made possible due to the varied exchanges and collaborations between the Prosecution Team as well as the Investigation Agency with many international and national bodies, groups, governmental agencies etc. that are all concerned stakeholders in the process of bringing an end to impunity. The cases before the Tribunal 7. Eight separate cases are now being tried before the International Crimes Tribunal. All cases are each at different stages of the legal process. Currently, witnesses are being heard by the Tribunal in one case in which the accused has been indicted, while the six other cases are in their charge framing stage which is the stage prior to indictment. In one case, the accused is still being investigated. True nature of this justice process 8. It is important that we understand the true nature of this ongoing process. The Act itself is a domestic law, passed by the Parliament of Bangladesh. It needs to be clarified that this justice process was never part of any intervention by the international community, nor a result of any international compromise, unlike most justice initiatives of its kind that have taken place in the international arena. The justice process that this Act envisaged setting up is purely a domestic process. This means, as I need to categorically stress, is that this Tribunal in Bangladesh is not an international Tribunal. The only international element in the scheme of things is the nature of the offences, that is, the international crimes. Although these crimes, due to their nature and trajectory of developments, have historically been a part of international criminal law, the Act internalised these crimes and thus made them a part of the jurisprudence of the Tribunal and of Bangladeshs legal system.

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Independence of the Tribunal and presumption of innocence 9. The Tribunal is independent and the Judges of the Tribunal are required by law to ensure fair trial [section 6(2A)]. The accused individuals are presumed innocent until proven guilty beyond reasonable doubt such is the high threshold of guilt to which this process has to adhere to. Safeguards during detention, investigation, and practice of bail 10. During investigation at the pre-trial stage, the Act and its Rules put in a number of safeguards to protect the rights of the accused. For example, unlike many other international forums, the accused before the ICT cannot be kept in custody for a long period. The law specifies that the accused shall be tried without undue delay [Rule 43(5)]. Not only that, the Prosecutors are required to submit periodic reports on the progress of the case so that the judges are satisfied of continued detention of the accused. Usually the accused who are under investigation, are kept in custody, in order to prevent interference with the investigation, tampering with evidence, coercion of witnesses etc. Even then, one of the eight accused, ie, Abdul Alim, has been enlarged on bail during the whole investigation period, though there was no express provision in the Act. The judges simply granted the bail out of their commitment to protect the right of the accused. In another case, the accused, i.e, Golam Azam, was not even arrested during the whole period of investigation, considering his age, he was only detained after the prosecution filed charges against him of which the judges were satisfied. In this case too, the Act did not expressly allow anyone to be free during the investigation stage, but the Tribunal used its discretion nevertheless. Safeguards during interrogation 11. The law provides that the accused who are under investigation could be interrogated by the investigators and prosecutors. However, according to the law, any statements made or information given by the accused during such interrogations cannot be used against the accused or be adduced as evidence during the Trial. Through this, the law protects the accused from self-incrimination and effectively removes the incentives for coercive treatment of the accused. While granting the permission to interrogate, the Tribunal has repeatedly stressed on putting in place such extraordinary mechanisms, which are a) not foreseen in the Act, b) not practised or available for other accused in Bangladesh, and finally c) not even provided to the accused in any of the other South Asian countries. During every interrogation, the Tribunal ordered that the accuseds counsel and a doctor be present at the place of
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interrogation, and both the lawyer and the doctor will be allowed to consult and examine the accused during intervals. The judges of the Tribunal, as a practice, have been very restrictive in granting such interrogations. The Prosecutors and Investigators are only allowed to interrogate the accused only once, and that too for a limited hours during the day set by the Tribunal. In one case, the Tribunal allowed such an interrogation but required that the same has to take place only in the comfort of the home of the accused where he was on bail, in the presence of his physician and lawyer. I do not know whether in any other jurisdiction the judges have allowed the interrogations to take place under such conditions. This is how the accused individuals are treated by the International Crimes Tribunal of Bangladesh. Right to be heard, to defend, protection from self-incrimination, and alibi 12. All the standard fair trial safeguards are afforded to the accused. I have already mentioned earlier about the presumption of innocence and beyond reasonable doubt threshold. In addition, the law is very clear that an accused cannot be tried twice of the same offences. Every accused before the Tribunal, as of right, is entitled to a fair and public hearing where he is allowed to defend himself. Such hearing/defence can be conducted by an engaged lawyer of his choosing who is legally authorised to appear before the Tribunal. The bottom line is the accused cannot be punished without being given an opportunity to be heard or, as already mentioned, shall not be compelled to testify against his will or confess his guilt. Even in cases where the plea of alibi of an accused fails, the law is very clear that such a failure cannot be used against the accused. Standards of evidence, witness/victim protection for both parties 13. In case of admissibility of evidence, the Tribunal is required to adhere to the very high threshold of probative value which also happens to be the set benchmark in other international tribunals prosecuting international crimes. The justice process led by this Tribunal, is also unique and path breaking in another respect. This Tribunal, for the first time in Bangladeshs legal history, has introduced and put in motion a witness and victim protection regime which is available to both prosecution and defence. No other victims and witnesses in Bangladesh before other courts get the kind of protection that this Tribunal affords. In addition to ending impunity and ensuring accountability for the crimes committed in 1971, such a regime of witness and victim protection, in my opinion, will probably be this Tribunals lasting legacy advancing the criminal justice administration in Bangladesh.

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Open public hearing in the presence of international observers and the media 14. Trials before this Tribunal take place openly so that justice is not only delivered in public but it is also seen to be delivered. Anyone, including observers from international community and the media is free to attend the sessions of the Tribunal, observe its proceedings, and report. There is no restriction whatsoever as regards such attendance except that of the limitation of seating arrangement. Adequate opportunity for the parties to raise legal and other challenges 15. So far, the defence has filed multiple challenges before the tribunal, ranging from bail petitions, indictment order, charge orders, and challenges to the Act to even of recusal of the Tribunal Chairman. The Tribunal, patiently and meticulously heard every petition and application before deciding on them within the bounds of law. The point is, neither the defence (nor the prosecution) is restricted from putting their objections on record and every party is getting their day in the court, which I already mentioned is an open one attended by members of the public. Trial before a mature forum, finding of guilt, proportionality requirement of sentences, and provision of appeal 16. Even when an accused is found guilty and convicted, the law is very clear as to the scope of the sentence as the law requires that the accused shall receive sentence that is proportionate to the gravity of his crimes as it may appear to the Tribunal to be just and proper. This is how, the punishment and sentences has to be justified. The accused can appeal the conviction before the Appellate Division of the Supreme Court, which happens to be the highest court of Bangladesh. Here it needs to be pointed out that although the Tribunal, by nature, is a trial court, it is like no other trial courts in Bangladesh. In the International Crimes Tribunal hearing of motions and petitions, monitoring progress of investigations and the safety of the accused during interrogations, admission of evidence, ensuring protection of witnesses and victims for both the prosecution and defence, deciding on guilt and passing of sentences are all determined and adjudicated by a panel of judges who are very high in rank and rich in experience, maturity, and judicial prudence which are unmatched to any other trial courts in Bangladesh. As mentioned earlier, the current Tribunal is constituted by two sitting Supreme Court judges accompanied by one very senior District Court judge with 30 years of adjudicative experience in the trial courts.

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Concluding remarks 17. Bangladesh has a well-established and smooth functioning legal system and a rich legal culture which shares its heritage with the other commonwealth nations. The international community had never any reason to be concerned about the standard of Bangladeshs legal system, as evidenced from the numerous reports. The justice process facilitated by this International Crimes (Tribunals) Act of 1973 and by the International Crimes Tribunal is, you may say, a part or an extension of that rich legal heritage. As a Prosecutor, and as an Advocate who has over 30 years of legal practice in Bangladesh, as a human rights lawyer and defender who has spent most of his life and career defending the rights of others, I can assure you that my team members and I are all committed to do our best to ensure justice, that is not for the victims only, but also for the accused. In that we need your understanding and support as you have extended in the past. We do understand that a meeting as brief as this may not be sufficient to explain a justice process, nor to understand it fully. So, please do not hesitate to direct your queries, comments and concerns to the Prosecution Team of the International Crimes Tribunal, to which we would be happy to respond. We are aware what a momentous task we all have undertaken to end an impunity that lasted 40 long years, that is why we appreciate and value such engagements. Thank you for your time and attention.

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SOURCES OF THE ARTICLES

Let There be Light: Commentary on IBA Fatwas- Tureen Afroz " Genocide, War Crimes & Crimes against Humanity in Bangladesh: Trial Under International Crimes (Tribunals) Act, 1973. Ed. Tureen Afroz. Dhaka: Forum for Secular Bangladesh and Trial of War Criminals of 1971, 2010. 162.

16th Anniversary of the liberation war museum- Richard J Rogers Read out on the occasion of 16th Anniversary of the Liberation War Museum, Dhaka, Bangladesh

ICT: Responding to its recent critics- Professor Rafiqul Islam "Law Alter Views", LAW & our rights, The Daily Star, Issue No: 258, Dhaka, Bangladesh (Available at: http://www.thedailystar.net/law/2012/02/04/index.htm)

Lobbying to prevent justice?- Arman Rashid "Opinion", Bdnews24.com, (Available at: http://opinion.bdnews24.com/2012/12/10/lobbying-to-prevent-justice/)

Toby Cadman: A crusader for rights or devils advocate?- Shah Ali Farhad "Opinion", Bdnews24.com, (Available at: http://opinion.bdnews24.com/2012/12/03/toby-cadman-a-crusader-for-rightsor-devil%E2%80%99s-advocate/)

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