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)