Barrister John Cammegh’s Talk at the American Society of International Law in
Washington Discussing the Bangladesh International Crimes Tribunal
(full transcript from May 19, 2011)
Barrister Cammegh: http://www.9-bedford-row.co.uk/members/john_cammegh
Chairwoman: Thank you very much Mr. Ambassador, and now we’ll have John speak.
Barrister John Cammegh: Good afternoon everybody, it’s wonderful to see so many people here today. I speak on behalf of my colleague Toby Cadman as well. It’s very gratifying to see so many people demonstrating such interest in what has become for us an almost obsessive journey over the last few months to try and instill some sort of common sense into a tribunal, or the preparation for a tribunal which thus far leaves such a great amount to be desired. Before I start, I must thank the American Society of International Law for having us, it is a privilege to be present at such an august institution. But most of all, I think it’s only right that we record our thanks to Ambassador Rapp because there is no doubt about it, he has had a significant effect and he has rendered significant influence in slowing everything down in Bangladesh – a train which seemed to have run away out of control towards the end of last year has at least been shunted for the time being into a siding it’s largely through his efforts—we’re very grateful for that.
Of course it’s quite strange sitting alongside Stephen and on the same side of the fence as it were because he was my—I’m not going to use the word “foe,” he used that word, not me—but he was my chief opponent in Sierra Leone for some three years IUF trial, so it’s nice to be on the same side as it were after all that time. And I also have to endorse a comment that Ambassador Rapp made early on in his address when he said, “If international standards apply, it will mean so much more to the people and to the victims,” referring of course to the tribunal observing international standards in purveying justice over the coming years. I often – I’m an English barrister that’s my background, I would normally be wearing a wig and a gown so this is quite a departure for me, I left those at home for this trip – I often used to surprise juries in my opening, or my closing speech rather, by telling them a little bit about my role, my job, and they were rather surprised when I opened up by saying it’s not my job to get my client off at all costs, and it isn’t.
You will find some defence counsel particularly in the international field who appear to adopt the cause rather than the case, Toby Cadman and I don’t do that, we are truly independent and I’m saying this for the benefit of anyone who may be listening from the Bangladesh government because we’ve taken a bit of stick from the Bangladesh government or certainly their press sympathetic to the government who have accused us of being part of a conspiracy, bla bla bla, we’re not, I can remember that, in one of the first times I appeared in the Old Bailey, I’m sure most of you have heard of that court in london, the judge made a comment which I’d never heard before. I’m sure a lot of you are probably familiar with it “Let justice prevail, though the heavens may fall.” I didn’t quite understand what that meant, but as time went by of course I got it, justice, fairness at all costs, we must not save anything, we must not blanch at any expense in order to ensure that justice, fairness is not only done, but is seen to be done, and the reason Toby Cadman and I are involved in this case is to try and do our best, because we can’t do any more than that but to do our best to ensure that whatever happens is independent, is impartial, and is fair. Because as Stephen Rapp said, if international standards of fairness are observed, it will mean so much more to the people and to the victims, because there were victims, I’m not going to sit here and contest the fact that there were atrocities in Bangladesh in 1971, and let me also say I’m not going to sit here and say there shouldn’t be a trial, but whatever trial there is has to be fair and has to be consonant with current international standards of fairness.
And it goes further than that, because, one of Stephen Rapp’s main objectives in Sierra Leone was legacy. The legacy really refers to reconciliation. This is a country that wants to become at ease with itself after years of being rent apart by hatred and violence, there are wounds which need to be healed, you can’t heal those wounds if you coerce justice to do what you want, to do or to enact, or rather to realize your political ends, because I’m afraid I have to say, being as objective as I can be, that the tribunal that’s being setup in Bangladesh has all the hallmarks of a political show trial and I will explain why, something that really belongs back in Stalin’s era in the 1930s rather than something in the modern 21st century, and the government have a duty to legacy, they have a duty to the people, they have a duty to themselves. If this tribunal is enacted fairly and properly it might bring closure on years of misery, it might heap praise and respect upon the government, it might place Bangladesh at the forefront of those pioneers in international criminal justice, it may set a magnificent precedent. But if you don’t do it properly it’s not worth doing at all, if you don’t do it properly, the precedent that is set is terribly dangerous. So what exactly am I referring to when I say it’s a political show trial? Well, I don’t want to be sensationalist, I’m not going to use those words again. I simply want to give you some examples of what the international crimes tribunal act allows, and you can make up your own minds. And if I’m being partial, if I’m being unfair, if I’m taking anything out of context, then I welcome people to challenge me because I want to be put right if I’m wrong.
Ambassador Rapp has talked about the definition of crimes, I want to touch upon those to start with and use this as an example as to why this tribunal necessarily has to have an international outlook. It cites crimes such as crimes against humanity but it doesn’t define them and as Ambassador Rapp has said the crimes against humanity were probably largely drawn from the old law in Nuremberg and Tokyo but things have moved on since then, there is no reference in the act to the definition of crimes against humanity there’s no reference to the need to prove something that’s widespread or systematic or that’s an attack on the civilian population for example. There is veiled reference to what we would these days refer to as joint criminal enterprise, the criminal mode of liability that is so often used in tribunals these days and that has become a subject of great debate. There is no definition of the ingredients that need to be proved to sustain allegations of command responsibility and yet that is cited in the act as a way that people can be convicted.
The tribunal needs international assistance, it needs to have recourse to precedents, cases already ruled upon in international tribunals over the last twenty years in order to understand the very terminology that it propounds in its own act. It needs international counsel whether in court or behind the scene. We’re not particularly fussed about that, obviously we would love to be in court to do our jobs, but it needs international expert assistance because this trial claims to be trying cases according to international law. It’s as simple as that. It needs provision for training, not just for lawyers, but for the judges who are equally, and I say this with all respect, uneducated in terms of the international concepts or legal concepts that the act appears to be introducing. It requires monitoring. Why? Not as a disrespectful blow to the institution, but because all tribunals have to be monitored, they all are, and it’s through monitoring that our tribunal can make sure it stays on the straight and narrow; it’s through monitoring that a tribunal can ensure itself against negative press if you like; it’s monitoring that ensures its integrity.
Let me just deal with some of the – I said you can judge for yourselves as to whether or not you feel these things are right – I just want to go into some of the provisions of the act and to talk in particular to start with about pre-charge. Now, you may or may not know that some of these detainees have been in custody for 10 months without charge. The five of them, the five that I represent, were all arrested on separate matters, trivial matters, nothing to do with violence against a person or anything like that. I say trivial, some of them might have been to do with dishonesty and what have you, but certainly not related to violence and nothing related to crimes that have now 40 years old; arbitrarily arrested on other matters, then re-arrested once in custody, for things to do with 1971 – we don’t know what yet, because there hasn’t been any prior disclosure whatsoever. The detainees haven’t been served with a single piece of paper detailing what it is that they’re likely to have to contest later on. There is, therefore, from the word ‘go’ no opportunity for a defender, for a prospective defender—because they haven’t been charged yet—to even think about preparing their defense, because they don’t know what it is that they’re facing. Now that is, how it is, I’m afraid.
It goes further, interrogations have been taking place recently, and why not? They’ve been in custody for long enough, it’s about time they were actually given an opportunity to put their side of the story. Except where I come from, and no doubt where most of us come from, if you are in police custody, if you are going to be questioned about an offense that you are suspected to have committed, you’re usually given the luxury of: a) some advanced disclosure as to what it is you’re going to be asked about, and given that these people are likely to be facing crimes such as ‘genocide’ it might be helpful for them to know what exactly they’re supposed to have done and b) for them to be attended by a lawyer. During the interrogations, lawyers are not allowed in the room, they’re not even allowed to see what’s going on in the room. They are unable to prevent the investigator who’s been conducting the interview from holding a spontaneous press conference halfway through the day and addressing the waiting press announcing how the defendant or the detainee has confessed to genocide and to all manner of other crimes. But there’s no formal record of the interview, and when the suspect is visited finally by his lawyer the next day he says, “I never said any of these things, I did what you told me to do, I said I’ve got no comment to make.”
Well let’s just for one moment accept, which we are assured didn’t happen, happened, and that is that a suspect confesses everything in interview – what right does the investigator have to go to the waiting press outside and spill the beans as to what has been going on during what must in ordinary circumstances be a confidential interview? How does that impact upon the fairness of a trial? How does that impact upon a defendant who may later on say, “Well, actually I never said those things, I want to go for trial” “Oh yes you did, you admitted everything” How does that impact upon the fairness of the process? How does that impact upon the perception of the general public? In other countries, that would never be allowed to happen. The trial would be stopped by the judge immediately, and what’s more is it not a contempt of court? But nevertheless, that’s what happens.
I’ve been told I’ve only got about 4 or 5 minutes left, so I’m gonna have to push on. The trial itself, is it independent, is it independent when, from bottom up, all actors are appointed by the government? The investigators, the prosecutors and the judges, all appointed by the government? Is it right that the tribunal or the act should deny defendants any chance of challenging or making interlocutory challenges to other courts? It’s ruled out. Is it right that the defence should be called to prove beyond reasonable doubt the existence of an alibi or any other specific fact in the course of their defense? Is it right that if the defense should call a single witness the prosecution are entitled to address the bench last when it comes to speeches? Is it right that the judges have an unfettered right to question witnesses – the defence with no right of re-examination after that questioning takes place? Is it right that rules of evidence, traditional rules of evidence should be specifically ruled out from the trial such that as stated by the act, the judges may take judicial notice of what is contained in magazines, press reports, newspaper cuttings, and television reports from the time? It becomes trial by rumor rather than trial on the evidence. And is it right that the prosecution can get away with serving their case papers on the court just three weeks before the trial where there is no specific requirement in the act for the defense to receive any disclosure, any statements, any evidence at all before the trail starts? But, bearing in mind this is a capital case, that’s what we have.
I want to just wrap up now, and I want to talk about the context: the Awami League won a landslide election victory at the end of 2008, one of the central planks of their manifesto was that they were gonna have this trial. After they won the election, they swiftly acted. The original plan was that members of the armed forces should be tried and 195 pakistani soldiers were arrested, tried, but pardoned in the early 70s. The whole thing was put to bed, and there was a, generally, a pardon issued by, I think it was presidential order number 16 of 1973. Everything was put aside, but what happened in 2009 was that the government woke it back up again and issued an amendment to the act that said we can now try individuals. The individuals have one thing in common—they’re all luminary members of the opposition. And now you start to see this may be a politically motivated trial.
There’s a constitutional article, and I’m gonna finish on the constitution, that says, and it’s article 31, to enjoy the protection of the law, and to be treated in accordance with the law, and only in accordance with the law, is the inalienable right of every citizen. The constitutional amendment contained within article 47, I haven’t got time to go into the detail, but it explicitly rules that out in terms of those charged in the tribunal. So not only the rules of evidence go, but constitutional rights under 31, 35, and 44 go as well. So my final word is this – the constitutional point is absolutely paramount and where I beg to differ respectfully with Ambassador Rapp is here, it’s all very well to encourage the government to tinker with the rules and try to bring things up to common day standards within the rule framework, but unfortunately the rules will always be subservient to article 47 of the constitution, which explicitly rules out any safeguard, any protection, for those facing prosecution within this tribunal. The constitution has to be amended. Without that, we have to trust a prosecution authority that has already shown itself to be fundamentally flawed, and tainted by political motive, leaving a dangerous and pernicious constitution dominating a tribunal that, at the moment, can only lead to disaster. I think I’ve gone over time, I’m stopping there, thanks very much for listening.
Chairwoman: Thank you very much.