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Open Letter from Lords Avebury and Carlile

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The Lord Avebury
The Lord Carlile of Berriew QC CBE

June 7, 2013

Re: Trials before the International Crimes Tribunal (ICT), Bangladesh

Dear High Commissioner,

We write in relation to a particularly urgent human rights situation in Bangladesh as members
of the All-Party Parliamentary Human Rights Group in the UK Parliament.

Proceedings before the ICT have troubled the international community for some time. You
will be aware of critical statements by the Special Procedures, as well as the reports by a
number of independent international NGOs. As the time for the first decision on appeal on
conviction and sentence of death approaches, it seems vital that you should request the
Bangladesh authorities for an invitation to visit by a joint delegation to viisit Bangladesh as a
matter of urgency with the objectives of assessing the procedures of the Tribunal and seeking
access to those concerned, including the defendants in their place of incarceration.

We fully support the prosecution of the most serious crimes of international concern and the
ending of impunity, but it is the duty of the State to ensure that in any judicial process
established for this purpose, international criminal justice is enforced in a way that is not only
complementary to national criminal jurisdictions, but also respectful of international human
rights standards and international standards of procedure, fairness and transparency. Any
lesser standard would negate the overall goal of securing the peace, security and wellbeing of
a nation. It would fail in its central purpose of bringing a sense of justice to the numerous
victims of conflict.

As early as 2012, the legislative framework of the Tribunal, namely its Statute the
International Crimes Tribunal Act 1973 (ICTA) and the Rules of Procedure, were criticised
for falling well short of recognised international standards. Although amendments were made
to include the most basic rights for an accused person, i.e. the presumption of innocence and
the independence of the judiciary, they were insufficient and provided only theoretical
protection which remains illusory in practice. Throughout the proceedings, which began in
2011, the government of Bangladesh and the ICT have been subject to widespread and
detailed criticism for their failure to secure the rights of the accused.

We note that a number of communications and urgent appeals have been submitted to
following Special Procedures:

a. Working Group on Arbitrary Detention (WGAD);
b. Working Group on Enforced or Involuntary Disappearances (WGEID);
c. Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions;

d. Special Rapporteur on the Independence of Judges and Lawyers; and
e. Special Rapporteur on Torture.
In response, the WGAD issued Opinion No. 66/2011 (Bangladesh) and Opinion No. 66/2012
(Bangladesh), in which it held that the cases fall in Category III of the categories applied by
the Working Group. It called on the government to adhere to the standards and principles set
out in the UDHR and ICCPR and to re-consider the applications for bail by the accused. In
Opinion No. 66/2012 the WGAD referred to the matters contained therein as of such gravity
as to warrant communication to the Special Rapporteur on Torture; a decision in that regard
remains pending.

On 7 February 2013, Christof Heyns, the Special Rapporteur on Extrajudicial, Summary or
Arbitrary Executions, and Gabriela Knaul, the Special Rapporteur on the Independence of
Judges and Lawyers issued a statement finding that the trial conducted in absentia against Mr
Abdul Kalam Azad did not provide for all the guarantees of a fair trial and due process.1 Mr.
Heyns stressed:

“Capital punishment may be imposed only following proceedings that give all possible
safeguards to ensure a fair trial and due process, at least equal to those stipulated in the
ICCPR, to which Bangladesh is a State party.”

Gabriela Knaul stated:

“I am concerned by questions that have been raised about the impartiality of judges and
prosecution services of the Tribunal, as well as their independence from the executive.
Witnesses and lawyers for the defence have also complained about an atmosphere of hostility,
intimidation and harassment. Due process requires at a minimum that defendants are able to
speak freely with their counsel, have adequate time to conduct their defence, and the ability to
call witnesses to speak on their behalf. The principle of equality of arms should be respected
at all stages of the proceedings.”

A further statement was issued in April 2013

We note that calls for the respect of the provisions of the ICCPR have been made by a
number of government and non-government representatives other than ourselves and the UK
Government. These have been largely ignored, and further abuses of process have been
allowed to pass unchecked. By way of example, judges have been removed and replaced by
the Government in the midst of a trial without providing any time or facilities for the new
judge to familiarise himself with the evidence already heard. In addition, the integrity and
independence of the judges have been seriously undermined by revelations in the
international media in December last year of serious judicial misconduct bordering on a
criminal conspiracy to pervert the course of justice. These allegations have not been refuted,
and they compromise the fairness of the proceedings before the ICT.2

We regret that the Tribunal and law enforcement agencies have failed to investigate and
sanction repeated incidents of witness intimidation and, in one well-documented case,
abduction. On November 5, 2012, the witness Sukhranjan Bali was abducted from the
Tribunal precincts, allegedly by law enforcement officers. After months of unanswered
questions, Mr Bali was found in a Kolkata jail. In a statement given whilst in detention in
India, Bali has confirmed that he was ‘abducted from the court premises in a police van and


See the article by The Economist, 15 December 2012:

was taken to an office in Dhaka’ which he stated belonged to the Detective Branch of the
Bangladesh Police. This incident highlights the need to conduct an independent and impartial
inquiry at the international level as it has a serious impact on the integrity of the proceedings.

Mr Bali is a Hindu. It is not in dispute that he lost at least one family member during the 1971
War of Liberation. He has no association with the Government, Jamaat-e-Islami or any other
political party. He has clearly been subjected to the most horrific treatment by both the
Bangladesh and Indian authorities.

A recent incident in Dhaka further reinforces the need for the Special Procedures mandate
holders to conduct an immediate inquiry. On May 26, 2013, Mr Munshi Ahsan Kabir,
Defence Counsel for the accused Mr Ali Ahsan Muhammad Mujahid was physically
assaulted by a Prosecution Witness, namely Mr Jalal Uddin in Dhaka city. An attempt to file
a complaint with the police was refused on the basis that the Commanding Officer was
unavailable and the duty officer was unable to accept the complaint in his absence. There has
been no action taken despite the lawyer in question suffering injury.

Recently, a planned trip by a delegation of lawyers from the House of Lords to visit the
Tribunal and to have open access to everyone concerned including the defendants was
indefinitely postponed due to the recent violence on the streets and the concern that the
government of Bangladesh may exploit the presence of the delegates as a means of
legitimising the decisions taken by the ICT, as was evidenced during the recent visit by
Ambassador Rapp.

In the light of the reports by the Special Procedures and the criticisms by NGOs, the onus is
now on the Human Rights Commission to assess and evaluate the proceeding before the ICT,
and if the Bangladesh government fails to issue the invitation as suggested, to conduct a desk
study that will bring the failures to observe judicial and procedural norms to the attention of
the international community. We reiterate that with the looming threat of the death penalty
being carried out imminently as the defendants lose their appeals, your immediate action is

H E Navi Pillay

United Nations High Commissioner for Human Rights

Office of the United Nations High Commissioner for Human Rights (OHCHR)
Palais des Nations
CH-1211 Geneva 10

1 Comment

  1. […] 08/06/13 Open letter from Lords Avebury and Carlile to UN […]

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