This article first appeared in the Saudi Gazette. 

A flawed trial process results in the miscarriage of justice. But if a trial itself is based on a biased motive and contrived charges, then the result is injustice.

Injustice indeed has been done to Bangladesh’s nonagenarian political figure Professor Ghulam Azam, who was arrested in January this year and has been kept in solitary confinement ever since. 
The former leader of Jamaat-e-Islami Bangladesh has been unjustly accused of crimes against humanity committed during the 1971 independence struggle. He is awaiting trial by the International Crimes Tribunal, whose legality and scope have been questioned by Human Rights Watch, Amnesty International, the UN Human Rights Council, and US Ambassador for War Crimes Stephen Rapp. 

Ironically, the court which was set up to try Prof. Azam for crimes against humanity has not even defined what “crimes against humanity” means. Stephen Rapp during his third visit to Bangladesh last November raised this issue. He also called for the participation of foreign counsel, which he said, was very important to ensure that uniform or generally agreed standards are observed.

Laurel Fletcher, clinical professor of law at the University of California, Berkeley, said, “Such trials run the risk of turning into political show trials, where laws are bent to produce predetermined results.”
The Tribunal, which remained defunct for 40 years, was revived in March 2010. But its character is still undetermined. At present, it lacks international character because of the lack of a number of legal provisions.
The case against Prof. Azam smacks of a vendetta. He is facing charges on 62 counts. If convicted he faces execution by hanging. The three-judge Tribunal earlier this month deferred to May 2 its decision as to whether it will frame charges against him.

Prof. Azam, who supported the unity of West and East Pakistan and opposed a military solution to political problems, denies any wrongdoing. The trial is politically motivated because no one has been tried for war crimes committed by pro-independence forces and for the massacre of Biharis. Prof. Azam, too old and infirm to appear in court, has been denied bail. Members of his family are not allowed to meet him on a regular basis. He has no access to books.

He is being treated like a convicted hardcore terrorist even though he has yet to be charged with any crime.
Bangladesh is a signatory to a number of international human rights conventions, including the Rome Statute for the International Criminal Court, and the world expects it to uphold the ideals of these accords.

This article appeared on www.bdinn.com on 30th March 2012

On the 2nd day of hearing of the case brought against the elderly leader & former Aamir of Jamaat e Islami, Prof Golam Azam, his advocate Barrister Abdur Razzak has said that Jamaat has never formed any Al Badr, Al Shams or Rajakar force. This case cannot run because the government has failed to give the reasons for the delaying of 40 years to start the judgement procedure. Since no authentic complaints are against him, the case should be closed. They have no proofs but few paper cuttings. There are no examples in the World where judgement has started after 40 years.
In the last 25th March, Barrister Razzak started presenting his logics. He finished the last part of hearing yesterday. On Thursday the favor’s side will give out the hearing and then the decision will be passed.
On the 2nd hearing, the aged Prof Golam Azam was brought at the tribunal in an ambulance. He was taken on the 2nd floor on wheel chair. Barrister Razzak commenced the hearing in his presence. He said that in the past 40 years there are no cases, complaints or even any GDs in any of the Police stations in the country.  No one filed any cases. If he did any crimes, there would have been cases in the last 40 years. The prosecution could not provide any logic for why this case was opened so late. There are no genuine evidences for supporting the cases against him. No information regarding the formation of Al Badr, Al Shams and Rajakar force by Jamaat e Islami is correct. These forces were not even auxiliary. Auxiliary forces are the ones those operate under the direct command of the Army.
On the part of the killing of Chiru Mia, in the hearing, Barrister Razzak announced it ridiculous and said, somebody took the order in an envelope in Dhaka and a group executed that order and no one in the group became criminal but instead, the man blamed is Golam Azam. How can that be? Where are the people who were into the killing? No descriptions of them are given. The first criminals should be the killers. Even if Golam Azam passed the order; he will be the next criminal. Where are the main killers? Since no info on them exits, the whole case is baseless.
Prof Golam Azam’s advocate Barrister Razzak further said that starting the judgement after 40 years is completely bizarre. Starting from Nuremberg to former Yugoslavia, Rwanda, Sierra Leone, Cambodia and Hague’s international court; no examples like this exists. In the hearing on 25th March, the tribunal Chairman asked about the judgement of Cambodia. Barrister Razzak said, the war in Cambodia started in 1975 and ended in 1979. But internal war went on for 19 years. Within 3 years from the ending of the war, in 2001, a tribunal was formed with the help of the UN and the judgement initiated.  Barrister Razzak added that it is the duty of the government’s side to explain this unusual case to the tribunal. They could not present any logical facts. If they fail to satisfy the logical terms, then the judgement procedure should be closed. At a certain stage, Barrister Razzak gave an example of the highest court of Britain, The House of the Lords.
Barrister Razzak added, the government side has given charges against Golam Azam in which no materials were found for the eligibility of charge formation. In the law it is stated that mentioned things must include the name of the witness, where the crime was committed and the type of the crime. In this part, the favor is completely a failure. Prof Golam Azam is the victim of political jealousy and his crimes identified are only for his political statements. At that point, he (Barrister Razzak) raised many examples of War Crimes and said that tribunal at first gets sure on valid proofs that the charge can be put on the accused. Repeating the same incident the government has surpassed the law.
Giving reference from 1973, the Barrister said, Jamaat e Islami and Chatra Shangha, in no ways, fall under the definition of an auxiliary force. Jamaat e Islami was a political organization and Chatra Shangha was a student organization. Illustrating different sections of law, he further added, that even Rajakar does not fall under the category of an auxiliary force. He clearly said, Jamaat never formed Rajakar, Al Badr or Al Shams.
In 1972, on 2nd August, the back then government formed Rajakar passing an ordinance. The Chief of that force was a civilian appointed by the government.

Pressure is mounting on the Awami League government as the international community continues to criticise the International Crimes Tribunal.

The Hurriyat leader Syed Ali Shah Geelani called upon the Bangladeshi government to stop persecuting Professor Ghulam Azam and other Jamaat-e-Islami leaders, in a letter to Sheikh Hasina, Bangladesh’s Prime Minister.

Open Democracy published an article today on the Bangladeshi Media’s support for the unjust ICT and the policies of the Awami League government.

Amar Desh wrote that the International Criminal Court has agreed to investigate Sheikh Hasina for crimes against humanity, after receiving a submission from UK nationals. Interestingly, this article is now offline, although a cached copy is available on Google.

Cassidy & Co, a “government relations firm” based in Washington, published an article in their blog which stated that “the basis for the creation of the ICT, the International Crimes Act of 1973, is deeply flawed and outdated” and which outlined their fears that if the trial is allowed to continue in its current guise, it will have repercussions for International crimes justice worldwide.

In addition, a number of UK politicians have contacted the Foreign Office and the Bangladeshi High Commission to urge changes to the ICT to ensure justice for those arrested.

The prosecution in the International Crimes Tribunal produced some of their much anticipated video evidence yesterday. However, the video did not show any footage of Ghulam Azam and was simply a montage of wartime footage with news reports from Western sources such as CBS, NBC and ABC News. The prosecution defended the video evidence, saying that they had not included footage of Ghulam Azam himself for “strategic reasons”. However, it provides more credence to the view that such evidence is severely lacking.

See here for more details (Daily Star newspaper report).

In today’s bail hearing at the International Crimes Tribunal, Professor Ghulam Azam’s bail application has been rejected. This is despite the recent UN Working Group for Arbitrary Detention’s criticism of the detention of other Jamaat leaders in similar circumstances. Justice Nizamul Haq rejected the bail plea saying “We do not find new materials in support of the claim that his health is deteriorating”. This is despite the recent reports of his family, who say that he has significantly deteriorated in physical and mental strength in detention.

Further details of the court decision can be found here.

The Bangladesh government, which likes to present itself as a progressive liberal democracy, has voted to pass a law preventing criticism of the International Crimes Tribunal. Arguing that the ICT is being “obstructed” by those who have questioned its intentions, the law aims to silence opposition completely by making it illegal to criticise the trial at all.

This follows the recent contempt case against the New Age BD newspaper which suggested that the trial may be a politically motivated “judicial stamp”  to allow the punishment of those that were (alleged to be) involved in war crimes.  In addition, the ICT judge and politicians have been quick to criticise an Aljazeera report by Nicolas Haque, which provided a relatively balanced view of the trial and mentioned the UN decision. They described the report as “untrue and baseless”. The reports have since been removed from the Aljazeera website and its Youtube channel, possibly as a result of pressure from the Bangladeshi government.

It is important that more voices are raised in criticism of the so-called “International Crimes Tribunal”   as  those in Bangladesh will soon be powerless to speak out against its many flaws.

Despite the assurances of the Bangladeshi government, Professor Ghulam Azam is deteriorating rapidly in custody. Although he has not been charged, he has been in virtual solitary confinement, with severely limited access to family or even lawyers. The United Nations Working Group on Arbitrary Detention condemned the detention of other political leaders in Bangladesh, which has been simply ignored by the Bangladeshi government.

Ghulam Azam’s family, especially his wife Afifa Azam, are very distressed by his increasingly frail appearance. He is also suffering from the effects of mental isolation and the lack of the usual rigid discipline in health and lifestyle that he used to maintain.

Please act now to contact your MP or representative about the conditions faced by Ghulam Azam and his rapidly declining health, as well as concerns that he will not receive a fair trial at the ICT. 

The International Crimes Tribunal began hearing the framing of formal charges against former Ameer of Jamaat-e-Islami Professor Ghulam Azam on Wednesday, despite a request for an adjournment on the hearing pending. Earlier in the day, a second bail petition was heard for Azam, and the tribunal said that it would make a decision on this matter on February 23.

The tribunal had ruled that the adjournment petition would be heard after lunch, and the court reconvened at 2:15pm. But upon seeing that none of the senior lawyers were present, tribunal chairman Justice Nizamul Huq asked the prosecution to begin with its formal charge against Azam. Justice Nizamul Huq is a controversial figure, whom the International Criminal Law Bureau has labelled a man who “has has a visible and apparent interest and bias in these proceedings”, given his part in writing reports used as evidence for the prosecution.

As the chief prosecutor began, a senior defence counsel, Tajul Islam, pointed out that there was still an adjournment petition pending. However, Justice Huq said that the petition would be duly heard, but in the meantime the prosecution should continue reading out formal charges, which he said would take five to six hours.

At 2.30pm, Azam’s chief counsel, Barrister Abdur Razzaq arrived and expressed his concern that the defence counsels would not have time to prepare, as the defence had not received DVDs of the documents of the case from the prosecution, and the documents received were illegible. He stated, “when we are asking for an adjournment, we are asking for adjournment of the proceedings for both the sides.”

Justice Huq insisted that the adjournment petition would be heard after the prosecution had read out the charges, and the defence were  told they would get enough time for preparation, as it would take time to read out the formal charges. Tajul Islam pointed out the farcical nature of proceedings, asking, “What is the point of adjournment if we still have to sit at the court room?”

Another judge, Zaheer Ahmed, intervened and allowed Razzaq to leave the courtoom, saying, “Not the entire defence team really needs to be here when the charges are merely being read out.” The prosecution continued to read out charges until 4pm, and will continue on Thursday.

Earlier in the day, the court heard a bail petition for Azam, in which Razzaq argued that Azam should be granted bail on humanitarian grounds, as the 89-year-old man was suffering from various complications and losing weight. The counsel cited a number of news reports documenting the retired leader’s illness, as well as stating, “He has been kept at the hospital for the last one month and five days. That is obvious proof that the man is ill.”

Azam spoke at the tribunal, saying that “they are gradually killing me before the trial is done” by giving him only very poor quality food. He also said that he is so weak that he needs someone to accompany him to the toilet,  so he would like to stay at home with his wife and family in his last days. However, his statement was ignored by the judges, who said that the lawyers should convey any messages on behalf of him.

After hearing the petition, the tribunal said it wanted to address all points made by the counsels of both sides and would give its verdict on Feb 23.

The United Nations Working Group on Arbitrary Detention has declared that the detention of six suspects of the Bangladesh International Crimes Tribunal is arbitrary and has recognised that the Tribunal’s procedures constitute a breach of Article 9 of the Universal Declaration on Human Rights and Article 9 of the International Covenant on Civil and Political Rights. The UN had previously remained relatively quiet on this issue, and this represents a significant development amid growing international pressure on the Bangladesh Government to give a fair trial to the opposition figures detained on allegations of war crimes.

In a statement on Tuesday, the UN Working Group said that it “holds that there have been several restrictions on the defendants’ access to legal assistance. In particular, the defence counsels have not been able to attend sessions during which the defendants were interrogated. Nor have they had unimpeded access to the evidence. The Working Group finds that access to information by the defendants and their lawyers has been restricted in such a way that hinders any challgenes of their pretrial detention, contrary to Article 9(2) and 9(4) ICCPR and general principles of law.”

The UN Working Group also criticised the government of Bangladesh for not justifying the refusal to release the defendants on bail, “particularly considering that all the underlying conditions were fulfilled.”

It concluded that “The Working Group considers that holding individuals in pretrial detention in the absence of any reasoned and adequate explanation is unnecessary and disproportional to the aim sought.”

International criminal lawyer Toby Cadman welcomed the UN Working Group’s opinion in a statement:

“The UN Working Group, an independent and impartial body beyond reproach, has issued a clear statement that the Tribunal is operating well below international standards and in clear breach of its treaty obligations as a State Party to the ICCPR.

“This convincingly demonstrates that the repeated derogatory remarks that opposition to the Tribunal is part of a conspiracy has no foundation.”