Statement from Toby Cadman, International Defence Counsel on International War Crimes Tribunal, Bangladesh
Friday, July 19, 2013
– Defence team has seen new evidence of high-level government interference in the International Crimes Tribunal, Bangladesh
– Material compromises both past and current trials
– New evidence will be released to the public within the coming days
– Azam trial saw no evidence that establish charges
– Defence reiterate their claims of witness interference, prosecution witness perjury and executive interference
– ‘These recent verdicts follow a trial process reminiscent of the darkest days of the Soviet Union’s show trials and unbefitting of a democratic nation.’
– Risk of continuing instability within Bangladesh if tribunal is permitted to continue to operate in its current form
This week has been a landmark moment for the International Crimes Tribunal, Bangladesh. It has seen two important verdicts. The first on Monday of Professor Ghulam Azam, found guilty of all 61 counts with which he was charged and sentenced to 90 years, commuted from the death penalty. The second was a guilty verdict for Ali Ahsan Mohammad Mujahid. He has been sentenced to death.
This week the defence has outlined in detail what it sees as the profound unfairness of these trials as well as the misconduct and illegality that lies at the heart of this tribunal.* These recent verdicts follow a trial process reminiscent of the darkest days of the Soviet Union’s show trials and unbefitting of a modern democracy. Despite widespread international condemnation over the grave deficiencies at the tribunal, the Bangladesh government’s unwillingness to investigate any of the reported malpractice raised by the defence or international human rights organisations is both highly suspicious and even an admission of guilt.
The defence has now seen further evidence that strongly links the highest levels of the Bangladeshi executive with witness intimidation and tampering. We hope to make this evidence public in the coming days, as soon as it has been properly verified. Our initial analysis is that this material indicates a judicial process completely undermined by high-level political interference. It reaffirms our suspicions at the commencement of the tribunal – that these trials have no basis in justice. Rather, the tribunal has become a ruthless political tool for the current government. It is an affront to justice, and an insult to the victims the tribunal was supposedly created to honour. We are confident that this new evidence will engage stakeholders in Bangladesh and internationally to dismantle this tribunal and work towards a fairer, internationally sanctioned, solution.
To restate categorically: these trials have brazenly ignored the most basic of legal norms. In the Azam trial, no evidence was presented during the trial that confirmed a single death. No evidence was heard to establish genocide or crimes against humanity. No evidence was presented that connected Professor Gulam Azam to any crimes. It is clear that the Judges themselves conducted their own investigations. Prosecution witnesses perjured themselves, while the Defence was prevented from producing witnesses. Furthermore, as was reported by Human Rights Watch amongst others, there has been witness disappearances as well as witness interference. Finally, the level of prosecutorial and judicial misconduct is unprecedented for a court of this type.
The defence has always maintained that the victims of the grave crimes perpetrated in the 1971 independence war deserve justice. This tribunal could have helped lay the ghosts of the past to rest by conducting an open and transparent restorative process. However, Bangladesh risks being plunged back into those dark years once more if the government continues this political witch hunt. The defence has always called for non-violent protest by those Bangladeshi’s who rightly feel aggrieved by this process. Yet we are extremely concerned for the stability of the whole country as important elections approach. We feel the irresponsible and openly divisive manner in which these trials are conducted may create an irreparable and dangerous political divide within the country. The Bangladeshi government and its international partners now have a duty to stop this tribunal creating a toxic political atmosphere that could plunge the country into a sustained period of civil or political unrest.
Yesterday, the Tribunal, in delivering Mujahid judgment, issued a warning that anyone who criticises the Tribunal or rejects its verdict may be charged. This attempt to muzzle criticism and silence opposition is a concerning development as elections approach. Despite the grave charges facing the defendents, they deserve a fair trial. More importantly, for the victims and their families, this tribunal is not fit for purpose. For the political benefit of a few, it risks turning back the clock in Bangladesh at this important juncture in its history.
9 Bedford Row
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Please see the downloadable file below for the full verdict in the ICT case against Ghulam Azam. The case was admitted to be flawed by the judge himself.
Flaws in the PGA’s trial admitted by ICT’s Presiding judge:
The presiding judge of the International Crimes Tribunal-1 said that Ghulam Azam’s case was distinct from the others for two specific reasons. “There are no allegations that he was physically present at any crime scene. And secondly, there are no allegations that he actively directed the commission of war crimes.”
The judge said that most of the evidence against Ghulam Azam was based on documents, essentially news reports.
“It would have been better if the prosecution had submitted more scholastic material like books, research paper or journal articles.”
Justice Kabir said that it was perhaps unwise to depend entirely on news reports since they were written immediately after the event without affording the journalist much time to think.
“Books and journals, they are different. The authors get more time to reflect on the events and research the matter, which make them more authentic,” observed Justice Kabir.
“But the prosecution did not really provide us with much, in a manner of speaking.”
The tribunal, he said, went out and collected relevant material on its own. “We needed to satisfy ourselves. It was also necessary for a better judgement.”
“This took us a long time. That is why it took us three months to give the judgement,” Justice Kabir continued, “But we are still not too satisfied with the documents we were able to collect.”
In this blessed month of Ramadan we are deeply disappointed and saddened by the unjust verdict of the so called International Crimes Tribunal in the case of our beloved father, Professor Ghulam Azam. We strongly reject any suggestion that he was responsible for the crimes he has been accused of, and believe that he has not received a fair trial. At an age nearing 91, this respected leader and Islamic thinker has been kept imprisoned for some 18 months. In addition, we have been appalled by his treatment during this time. Before his conviction, he was denied access to proper medical care, and was even refused permission to attend the funeral of his late brother who passed away earlier this year.
Professor Ghulam Azam is a respected Islamic thinker who is honoured by Muslims all over the world. As a student, he was a leader of the Bangla Language Movement and promoted the cause of Bangladeshis in Pakistan. He has since dedicated his life to promoting Islam in Bangladesh and has written prolifically on this subject. He has made an immense contribution to Bangladeshi politics, including the establishment of the caretaker government system, which has, until recently, continued to be used as the peaceful means of transferring power. Throughout his career, he has never sought fame or wealth, instead living a simple, disciplined lifestyle unusual amongst Bangladesh’s political leaders. As the leader of Jamaat-e-Islami, he has personally suffered much hardship including being imprisoned, exiled and vilified by the media and his political opponents. As a family, we have also by association been subjected to discrimination and mistreatment. My brother former Brigadier General of Bangladesh Army Abdullahil Amaan Azmi was dismissed from the army without a legitimate reason and I myself was unable to continue my academic career in Bangladesh. Family members have been refused visas to travel to Bangladesh without explanation.
Ghulam Azam was opposed to the creation of Bangladesh, as were many others at the time, but he was not responsible for any atrocities committed during the war of independence. Like many others, He supported the political unity of West and East Pakistan at the time of the war of independence, but he was opposed to a military solution to political problems and spoke out repeatedly against the crimes perpetrated by the military and paramilitary. Many of his statements during the war were not published due to strict censorship imposed on the media by the Pakistani officials. The 1971 war victims and their families have the legitimate right to receive justice for the crimes committed during the war of Independence from Pakistan. We also agree that the culture of impunity should stop and the real perpetuators of the crimes against humanity should be brought to justice. Furthermore, it is imperative that through punishing the real criminals we bring an end to the slandering and endless character assassination committed by politicians and a large section of Bangladeshi media against their opponents by exploiting the 1971 victims and the sensitivities associated with the War of Independence .The International Crimes Tribunal was set up to try those it says were responsible for the crimes committed during the war. The entire responsibility for war crimes committed by the Pakistani Army has been placed on a few individuals who did not hold any military power or influence, while the real perpetrators have never been brought to justice.
The International Crimes Tribunal has been the subject of concern by many leading international bodies and organisations, including the United Nations Human Rights Committee, the International Bar Association, Amnesty International and Human Rights Watch, as well as US Ambassador for War Crimes Stephen Rapp. A number of internationally respected media outlets including The Economist, International Herald Tribune, Wall Street Journal etc have also raised questions about its legality and true motives.
The proceedings of the trial have not satisfied demands for justice. Although we did not have much hope that the trial could be conducted fairly, the failures of the Bangladeshi legal system have been exposed and have proven our fears to be correct. Throughout the case, the defence team has been subject to intimidation and prevented from effectively doing its work. They were prevented from having the expertise of international human rights lawyers who were not allowed to enter Bangladesh. In addition, although they presented a list of over 2000 people who were willing to act as defence witnesses, they were arbitrarily restricted to only 12 witnesses. Due to the political turmoil and events such as the kidnapping of defence witness Shukho Ranjan, very few of those witnesses eventually gave testimony in Ghulam Azam’s favour. The prosecution were not restricted in their number of witnesses and had 16 in total. The politically motivated prosecution case is based on hearsay evidence and media reports, much of which cannot be relied on due to the passage of time. A photograph of my father with General Tikka Khan has been used as evidence that he was a war criminal. Ghulam Azam maintains that he was attempting to convince the General to change his policies towards the Bangladeshi people and there is no evidence to suggest otherwise. The prosecution has also argued that he is responsible for the death of police inspector Suru Miah on the basis of a letter which they have failed to produce. He has also been charged with the deaths of 38 men without any proof. The prosecution used some newspaper statements and tried to implicate him through command responsibility; however, they could not produce a single evidence that showed that Ghulam Azam’s statements led to a particular crime in a particular place. It is astonishing that the ICT has found my father guilty without any concrete evidence at their disposal. No genuine evidence or bona fide witnesses have been presented which could prove that my father was responsible for any crimes that occurred during the 1971 war. We believe that the reason this evidence was not obtained, is because he is innocent of the crimes he is being blamed for.
The judges in the case have also been proven to be in collusion with the prosecution. The leaked Skype conversations provided confirmation that the trial was being manipulated by Awami League sympathisers abroad, and that judgements were being prepared before the evidence had even been heard. Even though no judge has heard the evidence in its entirety, the tribunal has continued regardless, a fact that has been severely criticised internationally. How can a judicial process claim to be impartial and legitimate when no independent investigation took place to punish those involved in these serious crimes to pervert the court of justice? Rather, the editor of a Bangladeshi newspaper that published reports of the ‘Skypegate Scandal’ has been arrested and tortured under police remand.
We have repeatedly requested that the trial should be conducted with the presence of international observers, in an international court, as we do not believe it is possible for a fair trial to be conducted in Bangladesh in the current political climate. This is a hollow victory for the Awami League and not the justice that the victims deserve. It is essential that the appeal process should be internationally supervised to prevent a serious miscarriage of justice. We believe that history will judge this trial to be deeply flawed and unable to provide the standard of justice required for the sentence imposed.
Bangladesh wishes to be known as a progressive country determined to right the wrongs of its past. By wrongly convicting my father, the Bangladeshi justice system has failed itself and the Bangladeshi people. The trials have already succeeded in deepening divisions in Bangladesh, resulting in violence and instability. To date, hundreds have been killed and thousands have been rounded up and are suffering in custody. Our prayers are with all those who are facing oppression, malicious prosecution, custodial torture, police brutality and political violence.
We call upon the international community to ask the Bangladesh government to ensure that the appeals process is carried out under international supervision so that my father and his colleagues receive fair justice. The government has already interfered with the appeals procedure by appointing some controversial judges to oversee the appeals. Therefore, the need for international oversight in this process is absolutely crucial. We are not afraid of fair justice as we know that my father is innocent, but the way the government is influencing the judiciary process clearly proves how politically motivated the whole process is. If the Appeals Court fails to ensure fair justice and eventually kills him through judicial murder then one of the darkest days in the justice system will be written in Bangladesh.
My father is not afraid of death. He strongly said in a TV interview before his arrest that he is more concerned at the plight of the people in Bangladesh rather than his own safety. We love him and are naturally worried about his life. Millions of people around the world respect him for his service to his country and the wider Muslim Ummah. We hope that conscience will prevail over vengeance and through the help of United Nations and the international community, the Appeals Court will ensure that no miscarriage of justice takes place.
His many supporters will be upset by today’s verdict, and many protests are expected. We urge everyone to remain calm and protest peacefully for a man we have always known for his peaceful nature.
Finally, we would like to thank the defence team for their heroic efforts in representing my father. We appreciate that they have faced many difficulties, including intimidation and threats to their personal safety. We will pursue all avenues available through the appeal process, and are praying that the justice system is able to rectify the failings of this trial by properly reviewing the evidence. Ultimately, we rely on Allah to provide justice, and ask you to pray for him in this blessed month.
Chief defence counsel Barrister Abdur Razzak expressed astonishment at the verdict of a 90 years prison sentence given by the tribunal against the former Ameer of Bangladesh Jamaat-e-Islami, professor Ghulam Azam, on allegation of crimes against humanity in 1971.
After the announcement of the verdict by International Crimes Tribunal-1 on Monday in the case of Ghulam Azam, in an official response to the verdict Razzak expressed surprise during interview at his home.
Barrister Abdur Razzak said, “We are outraged at the verdict. We are surprised at the verdict. We think that, this judgment is unfair and manipulated by emotions. In the history of the criminal cases worldwide, such kind of judgment cannot be found”.
He added, “the prosecution couldn’t prove any of the 61 charges brought against Professor Ghulam Azam. This was the prosecution’s ultimate failure.”
The defence chief observed, “the prosecution described six events on the first allegation. These are: Ghulam Azam attended meetings with Yahya Khan, the president of the then Pakistan; with Tikka Khan, the military ruler; and with Maulana Moududi.”
“But the prosecution has completely failed to describe what was discussed in those meetings. Attending meeting with someone is no crime against humanity, these complaints don’t belong to the definition of crime against humanity. Still the tribunal has convicted him guilty and sentenced him to 10 years [for that]. This is unacceptable in the sight of law.”
“The prosecution filed the second charge depending on three incidents. These are: Ghulam Azam was involved in the process of formation of Central and local Peace Committees. Just being involved in the process of formation of Peace Committees cannot be any crime against humanity. If so, then the definition of crimes against humanity should be changed first. Yet the tribunal has convicted him of planning genocide & crimes against humanity and sentenced him to 10 years [for that].”
Barrister Abdur Razzak said, “the third and the fourth charge the prosecution brought are based on Ghulam Azam’s 50 statements. They have completely failed to submit any evidence other than just the newspaper cuttings.”
“The investigating officer in this case unequivocally acknowledged in his testimony that there is no such evidence that Professor Ghulam Azam’s statement had any effect on the occurrence of any crimes in 1971. This testimony of the Investigating officer proves beyond doubt that Ghulam Azam had no involvement with crimes against humanity and genocide.”
He said, “the fifth charge is the murder of a man named Siru [full name: Siru Miah]. Here the story of the prosecution is, the Pakistan Army killed the man in response to a letter of Professor Ghulam Azam.”
“The prosecution was unable to submit that letter to the tribunal. No letter, no letter carriers or mail, readers. Yet the tribunal, in their ‘wisdom’, indicted Professor Ghulam Azam for crimes against humanity.”
The defence chief commented, “In the history of criminal law of the last 200-300 years of our country, there is no example of sentencing someone based on such weak evidence. Yet the honorable tribunal has sentenced him to 30 years [for that].”
He said, “This is undoubtedly true, Professor Ghulam Azam politically believed in the integrity of Pakistan. He worked for the independence and sovereignty of the then Pakistan. But working for the independence and sovereignty of Pakistan and inducing genocide or crimes against humanity are completely different matters.”
Barrister Razzak said, “We believe that the charges brought against Ghulam Azam do not have any substance of genocide and crimes against humanity. This verdict is not a lawful verdict. We will file an appeal at the High Court against this judgment.”
In response to the sentence of Bangladesh Jamaat-e-Islami’s former leader Professor Ghulam Azam, his son former Brigadier General Abdullahil Amaan Azmi stated, “This is a completely irrational and biased verdict.” He said that “the sentence was given vengefully with political purposes. Those who failed confronting him face to face gave this verdict out of dogmatic political fervour. We will appeal against this sentence.” General Abdullahil Amaan Azmi was present as the sentence was announced on Monday as a family member. He stood next to Professor Ghulam Azam, who was in the dock, as the sentence was given. He spoke at the same time with the lawyers sat in rows in front of the tribunal.
After the sentence was announced he told his reaction to some members of the defence team. At that time Advocate Saifur Rahman, Advocate Shahjahan Kabir, Advocate Tariqul Islam, Advocate Gazi MH Tamim and Advocate Sajjad Ali respectively were there with him. Abdullahil Amaan Azmi said, “Professor Ghulam Azam was not a minister in 1971. Instead of those ministers or government officials, a civilian is being labelled with superior responsibility or command responsibility.”
He said, “This tribunal was from the beginning riddled with questions. The United Nations and various other international organisations have questioned this tribunal. After Skype conversations of the tribunal’s judge were leaked, the tribunal’s agenda has been in question. This verdict is a reflection of the government’s wishes.”
Abdullahil Amaan Azmi said, “Professor Ghulam Azam is a veteran of the Bengali Language Movement. There is nothing to sentence him for. The tribunal said that no crime was arranged in his presence. Then how did they give him a punishment? We will appeal against this sentence. I hope we will get a fair hearing for the appeal.”
He said, “My father was on the side of unity in Pakistan in 1971. But he did not speak against any individual, race or party.”
Ghulam Azam has been sentenced to 90 years in prison by the International Crimes Tribunal. This trial has been widely criticised as being politically motivated, with no valid evidence provided by the prosecution. The judge himself stated that the prosecution did not prove any direct involvement in war crimes. During the trial, his legal team was limited to 12 witnesses, only 1 of whom was allowed to appear in court. The prosecution were not limited in this way yet were only able to provide 16 witnesses who provided hearsay statements only. Further analysis of the trial can be found here
Ghulam Azam’s son Salman Azami has responded to the news in several interviews.
PRESS RELEASE ON BEHALF OF TOBY CADMAN OF 9BRI, COUNSEL FOR PROFESSOR GHULAM AZAM
“Courts try cases, but cases also try courts”
– Justice Robert Jackson
The verdict and sentence rendered by the International Crimes Tribunal, Bangladesh today is deeply disturbing and unexpected. The defence team will immediately start in its preparation to mount an appeal, but with the issuance of this judgment today, the Tribunal has lost all credibility in terms of its independence and impartiality. The total lack of credible evidence presented by the Prosecution has demonstrated that the Tribunal has little interest in bringing an end to impunity and bringing justice to the victims of the 1971 War of Liberation. The Tribunal Chairman demonstrated this unequivocally by stating that “the documents which the prosecution have submitted as evidence were not adequate”, but then proceeded to convict Professor Ghulam Azam and pass a sentence of death (commuted to 90 years due to his old age).
The Tribunal was established with the stated aim of bringing to justice those who committed crimes of an international character during the nine-month armed conflict in 1971. It is the duty of the present Tribunal to determine criminal responsibility for specific acts based on due process of law. An Accused cannot be convicted for acts that are so unclear that he is unable to know what he is to challenge. An Accused also cannot be convicted for being on the losing side of a conflict. The only way an Accused can be convicted is if specific crimes can be attributed to his conduct beyond a reasonable doubt. This is the standard of proof in the law applicable to this Tribunal, and there is simply no way to apply this standard to the case presented against Professor Ghulam Azam in a manner that justifies his conviction.
The Defence argued during the trial that, in light of its legal, evidential and fair trial submissions, the Prosecution has not proven any of the charges against Professor Ghulam Azam beyond reasonable doubt or at all, and as such he should have been acquitted of all charges.
The Tribunal has a responsibility to ensure justice to the victims of the Liberation War, but it also has a duty to ensure justice to an Accused. Justice is only meaningful if it is fair.
According to the United Nations Working Group on Arbitrary Detention Professor Ghulam Azam has been detained since his arrested in arbitrary detention and in breach of international law. The matter was referred to the United Nations Special Rapporteur on Torture, Inhuman Degrading Treatment and Punishment. Further, in a joint statement the UN Special Rapporteur on the Independence of Judges, Prosecutors and Lawyers and the UN Special Rapporteur on Summary Execution have raised serious concern as to the fairness of proceedings before the Tribunal.
Despite these very serious concerns raised by the international community the trial against Professor Ghulam Azam continued and he has now been convicted by a judicial institution that has been alleged to have engaged in instances of prosecutorial and judicial misconduct that may constitute attempts to subordinate perjury and pervert the course of justice; both of which are serious criminal offences.
As is now well established, the Defence in this trial (as well as all the other trials before this Tribunal) has been made to endure a myriad of injustices and procedural improprieties, which has precluded the possibility for Professor Ghulam Azam to receive a fair trial from the very beginning. These improprieties include witnesses committing perjury, judicial and prosecutorial misconduct, and undue influence by the executive. These are very serious allegations that have impacted on the conduct of the proceedings. All such allegations have been summarily dismissed without further inquiry that now call into question the integrity of the entire process.
The challenges with which the Defence has had to endure in this trial have been manifold. Throughout the proceedings the Defence has been thwarted in its efforts to put forward its case or to exercise the Accused’s right to properly challenge the charges against him. In this case, one defence witness had been threatened, apparently by a member of the prosecution, with facing charges for war crimes himself if he decided to testify on behalf of Professor Ghulam Azam. Another potential defence witness was arrested shortly before he was due to depose. This reflects a similar incident that has received international attention, when a prosecution-turned-defence witness, in the Sayedee case, was abducted by plain-clothed police officers outside the gates of the Tribunal on the morning of his testimony. He was detained by law enforcement officials in Dhaka, tortured, and then thrown over the border into India where he has been held in custody ever since.
The plethora of concerns with the trials generally has been widely published both in Bangladesh and the international media. Following the publication in the widely respected British publication The Economist of last November’s leaked Skype conversations and e-mails between the former presiding judge and Chairman of the Tribunal, Justice Md Nizamul Huq with an undeclared third party, revealed to be a Bangladeshi law professor residing in Belgium, the scale of the injustice that the Accused has had to face has become clear. It must be stated that in light of the exposed transcripts of those conversations and emails, it appears obvious that even the most basic standards of fairness and due process have been wilfully ignored and the rush to judgment has become all too apparent.
What is also clear from the leaked conversations and e-mails is the overwhelming evidence that reveals serious judicial and prosecutorial misconduct and the collusion of the Government with members of the judiciary and prosecution to ensure quick convictions. Indeed, the exposure of these conversations was the validation of years of criticism of the Tribunal since its inception by prominent international bodies including the Bar Human Rights Committee of England and Wales, Human Rights Watch, the UN Working Group on Arbitrary Detention, Amnesty International as well as the UK House of Lords and US Ambassador for Global Justice, Stephen Rapp, to mention but a few.
The Government is rushing to judgment in order to bring about a symbolic end. Needless to say, we consider this a gross injustice toward our client, Professor Ghulam Azam. This latest decision constitutes a very serious violation of internationally accepted principles of fairness, which, sadly, reflects the conduct of this Tribunal since its inception.
Toby M. Cadman
London, 15 July 2013
 Quoted in TELFORD TAYLOR, THE ANATOMY OF THE NUREMBERG TRIALS: A PERSONAL MEMOIR 45 (1992)