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TABLEOF CONTENTS

CHAPTER PAGE NO.

Outline of today's programme 03

Overview Of ICSF 04

Core Values and Approaches 04

Mission 04

Volunteers and Partnerships in the coalition 05

History 1971 & Background of ICT 06

Background 06

The International Crimes (Tribunals) Act 1973 06

Nature of ICTA 07

The Tribunals 08

Prosecution Team & Investigation Agency 09

ICSFs Commenton the letter of Mr. Stephen Rapp 10-32

Let There be Light: Commentary on IBA Fatwas 33-65

16th

Anniversary of the liberation war museum 66-74

ICT: Responding to its recent critics 75-78

Lobbying to prevent justice? 79-81

Toby Cadman: A crusader for rights or devils advocate? 82-89

ICTProsecutors speechbefore EU Parliament 90-96

Sources of the Articles 97

Annex 98-108

Follow us 109


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INTERNATIONAL CRIMES TRIBUNALSJUSTICE INPERSPECTIVE

Outline of today's programme

Welcoming Speech Documentary

A video presentation about the 1971 liberation war of Bangladesh.

PresentationFour members of ICSF will present their speech highlighting four different but relatedaspects to the justice process at the International crimes tribunals of Bangladesh. Thetopics are:

Presentation 1:

1971: Perpetrators, Victims, Motives, and Crimes

Presentation 2:

Four decades of campaign for justice

Presentation 3:

Framework of the Justice Process at the ICT

Presentation 4:

Alignments and roles of the parties

Q&A Session (Moderated by Nora Sharif) Concluding speech


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OVERVIEW OF ICSF

International Crimes Strategy Forum (ICSF) is an independent global network of activists and

organizations with membership spread out in four continents. Deeply committed to the spirit

of the historic Liberation struggle of 1971 in Bangladesh, when, number of majorinternational crimes were committed, this international network was setup to support the

justice process initiated by the Government of Bangladesh through the International Crimes

Tribunal (ICT), Bangladesh, to investigate and prosecute those responsible for international

crimes committed in 1971. Since its inception, ICSF has been interacting and engaging with

the ICT and other relevant authorities to assist the justice process that is in place to bring to

account the perpetrators of 1971 alleged of international crimes. United, the coalition stands

against all forms of impunity.

Core values andapproaches

Democracy. Human Rights. Justice. Rooted in non-elite, non-exclusive, collective and

participatory premises, the attitudes (as well as qualities) that we seek to promote within and

outside the coalition are: excellence, dedication, boldness and perfection. All forms of elitist

and/or self-propagating tendencies are, therefore, resisted. We believe, this is the kind of

mindset that time demands of this nation in order for it to succeed in bringing the history

back on track through securing long-overdue justice.

Mission

Broader aims and objectives of this coalition

1. Providing technical and research assistance to the various components and stakeholders of

the International Crimes Tribunal in Bangladesh;

2. Facilitating documentation, archiving and research based on existing data and evidence;

3. Carrying out new research on pertinent issues as well as gathering new evidence;

4. Generating consensus on key strategic issues;

5. Networking with other civil society actors and experts, both in Bangladesh and abroad,

with a view to finding common grounds for collaborative activism and generating support;

6. Lobbying with the formal official actors and working with the media, both in Bangladeshand abroad;

7. Monitoring progress of prosecution initiatives and adopting strategies to counteract

developments that can potentially delay or defeat the cause of justice;

8. Covering the trials thoroughly and providing in-depth feedback by involving experts in the

process.


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VOLUNTEERS AND PARTNERS IN THE ICSF COALITION

Since its humble beginning in early February 2009, the Forum has come a considerable way.

It had always been comprised of and run by volunteers who are committed to justice and

fairness acting in concert to pursue the Forum's objectives. Our volunteer-base is now spreadall over the world and the network is expanding. We have amongst us - students, teachers,

policy makers, human rights and cultural activists, professionals such as lawyers, engineers,

doctors, researchers, journalists and other media personnel, members in the armed forces,

individuals who have fought in the liberation war and also those who have lost their dear ones

resulting from acts of war crimes in 1971. With every passing day, more and more people and

organisations are joining hands with us to volunteer and brainstorm in the projects. At

present, in addition to volunteers contributing independently, the following organisational

entities are also working together as partners in this Coalition (listed in order of joining):

(1) Muktangon;

(2) Bangladesh Centre for Genocide

Studies.

(3) Sachalayatan;

(4) Cadet College Blog (CCB);

(5) E-Bangladesh;

(6) Genocide Archive Online;

(7) Amar Blog;

(8) Mukto-Mona;

(9) News-Bangla;

(10) London Lawyers' Forum;

(11) Nagorikblog;

(12) Amra-bondhu;

(13) Hoi-Choi Web Radio.
http://www.nirmaaan.com/blog/http://www.sachalayatan.com/http://cadetcollegeblog.com/http://www.e-bangladesh.org/http://www.genocidebangladesh.org/http://www.amarblog.com/http://www.mukto-mona.com/http://www.news-bangla.com/http://www.nagorikblog.com/http://www.amrabondhu.com/http://www.hoichoiwadio.com/http://www.hoichoiwadio.com/http://www.amrabondhu.com/http://www.nagorikblog.com/http://www.news-bangla.com/http://www.mukto-mona.com/http://www.amarblog.com/http://www.genocidebangladesh.org/http://www.e-bangladesh.org/http://cadetcollegeblog.com/http://www.sachalayatan.com/http://www.nirmaaan.com/blog/


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HISTORY 1971 & BACKGROUND OF ICT

Background

1. The people of Bangladesh waged armed struggle to free the country from military

occupation by Pakistani army and thus ensued the liberation war of 1971 that lasted aboutnine months from on 26 March to 16 December 1971 eventually resulting in the emergenceof a free and independent People's Republic of Bangladesh. The conflict broke out when thePakistani army units launched a military operation called Operation Searchlight in EastPakistan against Bengali civilians, students, intelligentsia and ordinary people who demandedmilitary regime, then in power in Pakistan, to adhere to the results of the first everdemocratic election held in Pakistan in 1970. The Awami League received overwhelmingendorsement and became the majority party of Pakistan, but still, instead of followingdemocratic norms and to handing over power to the elected majority, the Pakistani military

junta decided to launch massive armed attack on civilians and began committing crimes allover the country against unarmed civilians, not seen since the end of the second world war.

2. As a result of this long military operation led by the Pakistani military with directparticipation, support and collaboration of an ideologically motivated small minority, in theend succeeded in killing three million people, committing 300.000 rapes, and deporting 10million people to neighbouring India, and half of 75 million population internally displaced.The crimes committed in 1971 in Bangladesh in terms of brutality, atrocity and heinousnesshas still regarded one of the major occurrence since Holocaust. In perpetrating these crimes,the occupying Pakistani army and their auxiliary paramilitary forces (e.g., Razakar, al- badaretc) did not regard the minimum norms and standards of international war laws(jus in bello).

3. But the perpetrators of these unprecedented crimes enjoyed decades impunity and

remained unaccountable until now while victims suffered in agony and lack of justice. Therewere however nationwide campaign for justice over these years and in last general election in2008, the Awami League-led 14-party alliance promised to end this culture of impunity andto initiate legal process to try those responsible for committing international crimes in 1971.Thereafter, the government that formed after the election set-up the ICT on 25 March 2010.The Bangladesh government is pledge-bound to its people and to the world to end impunityto those who committed crimes such as genocide, crimes against humanity and otherinternational crimes on the territory of Bangladesh.

The International Crimes (Tribunals) Act, 1973

1. The International Crimes (Tribunals) Act 1973 was enacted by the Bangladesh Parliamentwhich is vested with the legislative powers of the Republic under the Constitution. Afterdetailed deliberation and taking experts advise, the Parliament unanimously adopted theICTA to provide for detention, prosecution and punishment of persons of genocide, crimesagainst humanity, war crimes and other crimes under international law, and for matters

connected therewith (Preamble).

2. The Parliament enacted ICTA to provide for domestic mechanism to address large scalecrimes committed in Bangladesh during the war of liberation of Bangladesh in 1971. Thecrimes included targeted killings of certain religious and national groups such as Bengaleesand Hindus, widespread, systematic as well as indiscriminate killings of civilians including


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women and children. The women were particularly targeted for rapes and assaults. Hinduswere killed and or forcibly converted to Muslim. Crimes also included wanton destruction ofvillages and towns, and looting of properties. As noted above, 10 million people weredeported to India. In short, Crimes against humanity, Crimes against peace, Genocide, WarCrimes and other crimes under international law were committed at an unprecedented scale.

3. These crimes caused serious concerns to the international community, and violatednumerous provisions of international humanitarian laws, customary international laws, andcivilized practices. The Government of Bangladesh decided to investigate and prosecutethose involved and responsible and the ICTA created necessary legal framework for the

justice process to begin. Moreover, the Government was mindful about its internationalobligations and of customary international law including its duly to investigate and prosecuteall crimes as well as crimes of international concern and international crimes.

4. The ICTA has been an unique piece of legislation as in 1973, hardly any country in theworld had developed such a comprehensive legal infrastructure to enable national jurisdiction

to try international crimes committed by nationals of any country in the territory ofBangladesh (ICTA Section 3. 1). It created a complete legal order, considering gravity ofcrimes involved as well as limitations of ordinary criminal procedures, that provided noavenues to address international crimes and for the first time, and enabled establishment ofthe International Crimes Tribunals (ICT).

Nature of ICTA

1. It is important that the true nature of this ongoing process is understood. The Act itself is adomestic law, passed by the Parliament of Bangladesh. It needs to be clarified that this justiceprocess was never part of any intervention by the international community, nor a result of anyinternational compromise, unlike most justice initiatives of its kind that have taken place inthe international arena. The justice process that this Act envisaged setting up is purely adomestic process. This means, the International Crimes Tribunals in Bangladesh is notinternational in nature, but for all meaning and purposes they are domestic. The only

international element in the scheme of things is the nature of the offences, that is, theinternational crimes. Although these crimes, due to their nature and trajectory of

developments, have historically been a part of international criminal law, the Act internalisedthese crimes and thus made them a part of the jurisprudence of the Tribunal and ofBangladeshs legal system. It in fact should be seen as internalization of international law indomestic legal order of Bangladesh which was done pursuant to international obligations of

Bangladesh to deal with international crimes as well as to ensure justice to millions of victimsof crimes committed in 1971.

2. The Crimes under the ICTA are all crimes under customary international law and regardedas international crimes. Although the Act has been enacted in 1973, the core crimes remainedsame until today and understood now exactly as was when the law was adopted. The Acthowever expanded the definition of Genocide to include political group as one more

group. This was again based on prevailing notion of Genocide as reflected in the first UN

General Assembly Resolution no 95(1) adopted on 11 December 1946 that reads as follows:

The Crime of Genocide


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Genocide is denial of right of existence of entire human groups, as homicide is denialof right of existence shocks conscience of mankind, results in great loss of humanityin the form of cultural and other contributions represented by human groups, and iscontrary to moral law and to the spirit and aims of the United Nations.

Many instances of such crimes of genocide have occurred when racial, religious,political and other groups have been destroyed, entirely or in part.

The punishment of crime of genocide is a matter of international concern.The General Assembly, therefore,

Affirms that the genocide is a crime under international law which the civilised worldcondemns, and for the commission of which principals and accomplices - whetherprivate individuals, public officials, or statesmen, and whether the crime is committedon religious, racial, political or any other grounds - are punishable;

Invites the Member States to enact the necessary legislation for the prevention andpunishment of this crime.

However, the political group was left out in the final negotiations of the GenocideConvention adopted in 1948, largely because the States during negotiations failed to reach toa consensus but the demand for expanding the ambit of definition of genocide has alwaysbeen there. Therefore, Bangladesh, having experienced the actual carnage of genocide, quiterightly included the political group as part of definition of genocide, adopting the broaderambit of definition as per the UNGA Resolution which should always have been there.

3. Apart from Crime of Genocide, the ICTA deals with Crimes against humanity, Crimesagainst peace, War Crimes, Violation of humanitarian rules applicable in armed conflicts laiddown in Geneva Conventions of 1949; and attempt, abetment or conspiracy to commit suchcrimes, and complicity in or failure to prevent commission of such crimes [Section 3 (2)ICTA].

TheTribunals

1. In addition to defining norms of international crimes and other definitions, ICTA being aself-contained law, provided for setting up of Tribunals and determined its jurisdiction,powers and functions of investigation and prosecution agencies, procedure of trial, powers of

the Tribunal, rights of the accused, judgment and sentence, rights of appeal, and power toformulate rules of procedure etc.

2. The first International Crimes Tribunal was set up by the Government on 25 March 2010,and the second Tribunal was set up in early 2012. The ICTA is very specific regarding thequalification of the appointee judges in order to ensure a high standard of trial. Section 6(2)of ICTA provides that any person who is a Judge or is qualified to be a Judge, or has been aJudge of the Supreme Court of Bangladesh shall be appointed as Chairman and Member ofthe Tribunal. Accordingly, two separate Tribunals have been constituted, each composed ofone Chairman and two Members. Out of six members in both the Tribunals, five of them aresitting Justices of the Bangladesh Supreme Court and remaining Member is a senior District

Judge having long standing judicial experience in the trial courts. Here it needs to be pointedout that although the Tribunals, by nature, are trial courts, they are like no other trial courts in


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Bangladesh. In the International Crimes Tribunals hearing of motions and petitions,monitoring progress of investigations and the safety of the accused during interrogations,admission of evidence, ensuring protection of witnesses and victims for both the prosecutionand defence, deciding on guilt and passing of sentences are all determined and adjudicatedby a panel of judges who are very high in rank and rich in experience, maturity, and judicial

prudence which are unmatched to any other trial courts in Bangladesh.Independence of the Tribunals and their fair trial obligations

3. The ICTA, through amendment in 2009, guaranteed independence of the Tribunal underSection 6.2A which reads as: The Tribunal shall be independent in exercise of its judicial

functions and shall ensure fair trial. This provision was specifically introduced to protectthe Tribunals from potential political or other influences by imposition of this positive dutyto act independently.

4. Section 6(2A) of the ICTA obliges the Tribunals to ensure fair trial in recognition of theobligation under the Constitution of Bangladesh as well as under international instruments to

which Bangladesh is a party to, including the ICCPR. This is a positive legal obligation of thejudges to ensure that every aspect of fair trial is ensured throughout the process, for theaccused, as well as for the witnesses and victims.

Prosecution Team and Investigation Agency

1. Under the ICTA, on 25 March 2010, the Government set up the Prosecution Team [Section7(1) ICTA] and the Investigation Agency [Section 8(1) ICTA] of the Tribunal and appointedProsecutors and Investigators respectively. The Prosecutors of the International CrimesTribunal are all experienced lawyers with a significant number of years of court experience.They are well versed in criminal law and possess considerable expertise at handling criminaltrials. Over the years, these Prosecutors have also enhanced a great deal of understanding andknowledge over the theories and concepts surrounding international criminal law and howtrials of persons alleged to have committed core international crimes, have been held acrossthe globe. This has been made possible due to the varied exchanges and collaborationsbetween the Prosecution Team as well as the Investigation Agency with many internationaland national bodies, civil society groups, governmental agencies etc. that are all concernedstakeholders in the process of bringing an end to impunity.


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16th

Anniversary of the liberation war museum

Richard J Rogers

Introduction:

I feel extremely honoured to speak to you today as we celebrate the 16th anniversary of the

Liberation War Museum. The Museum is a testament to a peoples desire to know and

understand the difficult and painful episodes of its own history. Few communities around the

globe can claim to have a history devoid of conflict or tragedy and dealing with the post-war

situation has always been a challenge. Embarrassed or afraid of the truths that may rise to the

surface, some call to forgive and forget the past, to turn a page, to leave the skeletons in the

closet. Yet, time and again, this philosophy of repression has left too many questions

unanswered, too much misunderstood, and has led history to repeat itself. In the former

Yugoslavia, grievances hundreds of years old re-surfaced in the 1990s to result in one of the

greatest tragedies in modern European history. In Rwanda, the echoes of colonial rule fuelled

a divide that ended in a slaughter of almost a million people. Two decades after the First

World War left Europe in ruins, Adolf Hitler managed to garner support for a second and

even more devastating war. In 1971, Bangladesh was scarred by a terrible conflict that has

not been put to rest. The way in which the people of Bangladesh approach this past will

undoubtedly shape its future.

Today I would like to talk about a number of issues that are relevant to the on-going

accountability process at the International Crimes Tribunal in Dhaka (which I will refer to as

the ICT). Initially I will discuss the delays in bringing accountability for mass atrocities, the

need to keep memories alive during that waiting period, and the importance of legacy

programmes in giving a sense of ownership to the public. Later I will address the acceptance

of State responsibility for mass crimes, and will try to give some context to the criticisms that

are being levelled at the ICT. By way of comparison I will, from time to time, refer to my

experiences in Cambodia at the Khmer Rouge Tribunal, where I worked for five years as the

head of the defence office.

Victims long wait forJustice

Post conflict accountability can be dealt with in different ways. At the end of World War II,

the three leaders of the Allied Powers met to discuss this very question. Winston Churchill

advocated for the summary execution of all captured high-ranking Nazi officers. Stalin

preferred to hold a show trial, where the defendants would be presumed guilty and the forum

would be used to catalogue their crimes and determine their punishment. Roosevelt was also

in favour of a trial, but advocated for a more balanced procedure. The Nuremberg

International Military Tribunal was born out of these negotiations, setting down the

foundations for international criminal justice. Over the last six decades, criminal trials havegradually become the recognised means of assessing responsibility, and shedding light on


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conflicts. From Germany to Japan, Yugoslavia to Rwanda, or East Timor to Sierra Leone,

victims of war and tyranny have come to associate justice with the path to truth,

reconciliation and emancipation. Yet in most of these cases, the wait for justice has been long

and hard.

I recently worked in Cambodia where in the 1970s, a Maoist regime plunged the country into

a four-year nightmare of forced collectivisation, systematic torture, and the death of around

1.7 million people. Although the Khmer Rouge was toppled in January 1979, it was not until

2007 that a judicial body began to look into these atrocities. This judicial body is known as

the Extraordinary Chambers in the Courts of Cambodia, or the Khmer Rouge Tribunal.

One victim and subsequent witness at this Tribunals first trial typifies the long and difficult

wait for justice experienced by the victims of the Khmer Rouge. His name was Vann Nath.

After spending two and half years in a forced-labour camp, Vann Nath was arrested in

December 1977. Following a series of interrogations and torture, he was sent to the notoriousS21 prison. For a month he lay shackled by his ankles, sharing a filthy cell with up to sixty-

five other detainees, in silence and in fear. Prisoners were only allowed six teaspoons of gruel

a day, and if insects fell from the ceiling they fought each other to eat them. Prisoners were

not allowed to talk, move, or sit up without permission. Van Nath testified at trial that

people were dying one after another and he felt like death was imminent.

One day during his capture, Vann Nath was asked to paint a picture. His jailer approved of

his artistic talent and Vann Nath spent the next 11 months painting portraits of a man he later

learned was Pol Pot, the leader of the Khmer Rouge. This ultimately saved his life as he was

spared death in order to paint. Although his living conditions improved, the torment

continued, as he heard the cries of tortured inmates, and saw thousands leave to the killing

fields. When the Vietnamese invaded Cambodia in January 1979, Vann Nath fled S-21 to

freedom, but in the knowledge that he was one of only a handful of prisoners to survive -

over 12,000 fellow inmates had perished.

Van Naths memories continued to haunt him long after the Khmer Rouge was defeated. As a

kind of therapy, he began painting the scenes of S21 as he remembered it, and these shocking

paintings now cover the walls of the Genocide Museum that occupies the former grounds of

S21.

Finally, after thirty years of nightmares and unanswered questions, Van Nath was given the

opportunity to testify as a witness in the case against the former Chief of S21, a man known

as Duch. When asked what he hoped to gain from the trial Van Nath responded: I never

imagined I would be able to sit in this courtroom todayThis is my privilege. This is my

honor. I do not want anything more than that. Duch was sentenced by the Khmer Rouge

Tribunal to 35 years in prison with 19 years left to serve after deductions. Although many

commentators criticised what they saw as a lenient sentence, Vann Nath said very sincerely

that he accepted this decision by the Tribunal.


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Vann Naths story illustrates the importance of justice to the victims of atrocities. Justice, in

Vann Naths sense was seeing his own jailer confronted with the horrible crimes he had

committed, and the knowledge that there was, finally, no impunity for his tormentor. His

sense of justice mirrors the sentiments felt by victims all over the world.

Justice Delayed

Sadly, the delay in bringing justice to Vann Nath proved to be too long. The verdict and

sentence were appealed, but tragically, Vann Nath died a few months before the final appeal

judgement was rendered, never to hear that Duchs term of imprisonment was increased from

19 years to life.

The road to effective justice is never an easy one, and the victims of atrocities are all too

often sacrificed for political expediency. A genuine justice process cannot be powered solelyby the painful memories and hopes of the victims. It requires strong public and political will,

as well as substantial resources. It also requires a secure context, within which the lawyers

and witnesses can feel at ease to make decisions and statements dictated by their conscience,

and not by fear or external influence. In Cambodia, such a state of security was not possible

until the effective end of the civil war in 1998. Yet, even in a relatively safe environment and

with the benefit of political will to hold trials, it took another nine years of difficult

negotiations between the United Nations and the Government of Cambodia, to finalise the

terms of international support.

In many ways the difficulties faced in Cambodia mirror hurdles to justice the world over, andnowhere more so than in Bangladesh. For forty years, the appeals for a genuine judicial

process fell victim to the constant shift of political power, from those wishing to pursue

justice to those for whom the pursuit of justice collided with their personal or power interests.

Justice in Bangladesh was delayed for far too long, but now that the conditions are finally

ripe, it must be pursued robustly.

Keeping memory alive

Complex criminal cases examining civil and military command structures require large

amounts of evidence to establish the link between leaders and foot soldiers. In the context of

trials, which, as in Bangladesh and Cambodia, take place decades after the fact, retrieving,

safeguarding and cataloguing such evidence requires a tremendous effort. International trials

in such circumstances would not be possible without organisations such as the Liberation

War Museum, keeping alive the memories of past wrongdoings and acting as an archive for

evidence. There are a number of examples of these types of organisations around the world

and I would like to outline the work of one or two others.


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After the breakup of the Soviet Union, a volunteer organization called Memorial was

founded in Russia, subsequently spreading to other post-Soviet States. Its goal is to promote

the revelation of truth about past events and to safeguard the memories of the victims of

political repression by totalitarian regimes. Originally conceived to document only Stalin-era

atrocities, the organization has developed into an important archive of post-Soviet humanrights abuses, and an engine for the formation of public consciousness based on the values of

democracy and law. Parties bringing cases against post-Soviet States to the European Court

of Human Rights have relied heavily on the wealth of information in its database.

Another example is DCCAM. The Documentation Centre of Cambodia, began as a field

office of Yale Universitys Cambodian Genocide Programme, funded by the US State

Department. In 1997, it became an independent NGO, whose goal is to research, document

and share the history of the Khmer Rouge period. To date, DCCAM has provided over half a

million pages of documents and photographs to the Khmer Rouge Tribunal to be used as

evidence in the ongoing case against the remaining leaders of the Khmer Rouge regime.

As you all know, the Liberation War Museum is not just a building with walls, a roof and a

ticket booth. The Museums mission, just like the mission of Memorial and DCCAM, is to

keep alive the memories of the painful past for future generations, and to teach them the

importance of tolerance, mutual respect, democracy and the rule of law. Its efforts have

contributed enormously to making the International Crimes Tribunal a reality. Long after the

ICT completes its mission, the Liberation War Museum will undoubtedly continue to play a

vital role in documenting and disseminating the courts findings, evidence and testimony,

thus turning legal proceedings into a record of history.

The importance of outreach and legacy

To help transfer the important lessons about history and justice to the general public, Legacy

and Outreach programmes have been implemented by war crimes courts or by NGOs.

Important legacy initiatives may include public forums to discuss the trials, the publication of

summaries of proceedings, public screening of important hearings and court rulings,

workshops on crucial legal and factual issues, as well as exhibitions and archives.

These sorts of initiatives are important because whilst the moral principles underpinning the

trials may resonate with people from all walks of life, the slow and technical legal process

can easily alienate much of the public, with only arrests and verdicts generating widespread

interest. This in turn dilutes the peripheral, long-term benefits of the criminal proceedings.

Outreach programmes, which can explain the legal process in a language understood by all,

can help give the public a real sense of ownership.

When working at the Khmer Rouge Tribunal, I attended public forums around Cambodia to

discuss on-going proceedings. Students, legal professionals and poor farmers alike would be

given an opportunity to listen and speak to representatives from all the various organs of the

Tribunal. We spoke to victims and perpetrators, those who believed in the benefits of the


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Tribunal and those who criticised it. Although the tangible benefits are hard to measure, the

feedback from the communities was extremely positive and the forums were always well

attended.

In addition to these public forums, Cambodian NGOs, such as DCCAM, would organise

transport, food and guided tours for communities across the country that wanted to visit the

court and watch the on-going proceedings from the public gallery.

These types of initiatives could also enhance the impact and the legacy of the ICT in

Bangladesh. The fact that the Dhaka Tribunal is a national court and therefore accessible to

many people, is an important benefit from a legacy perspective. Full advantage should be

taken of this proximity.

State Responsibility

Wars and mass atrocities are rarely free from the participation of State entities the army, the

police, the State security services. Many Bengali victims may rightfully feel that a full

inquiry into the crimes of 1971 is impossible without an investigation into the actions of the

Pakistani military and State.

The State of Pakistan has never accepted responsibility for its actions or fostered local

accountability mechanisms. This is despite findings by a Pakistani Judicial Commission that

the Pakistani army may have committed atrocities and should face a Court Martial. Although

this lack of acceptance and action by Pakistan is regrettable, it is not unusual. The formerSoviet Union has never taken responsibility for its Cold War proxy conflicts that led to

countless deaths, political upheaval and economic collapse in nations across the globe. The

United States has never acknowledged its responsibility for the consequences of its carpet-

bombing operations in neutral Laos and Cambodia during the Vietnam War. Nor has China,

for the support it provided to the Khmer Rouge. And Turkey still refuses to accept its role in

the Armenian Genocide.

The goal of international criminal law is to determine criminal responsibility of individuals,

not the responsibility of a State. Yet, the potential for international criminal trials to highlight

the role of third States and to discuss State complicity, should not be ignored. The temporaljurisdiction of the Khmer Rouge Tribunal was designed to avoid the period of US bombing of

Cambodia, which took place prior to the Khmer Rouge victory. Nevertheless, the lawyers

have made numerous attempts to expose the influence of the United States and China on the

events being examined. Likewise, Pakistani officials may never be brought before the

International Crimes Tribunal in Dhaka to respond to allegations of mass atrocities, but that

does not mean that these important facets of history cannot be aired during the proceedings.

It took the French government fifty years to acknowledge and apologize for its role in the

deportation of 80000 French Jews to Nazi concentration camps during the Second World

War. In 2008, the Australian government apologized for policies that "inflicted profoundgrief, suffering and loss to its Aboriginal population decades earlier. The decision to make


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both of these apologies was influenced by widely publicized litigation. In a similar way, the

International Crimes Tribunal may also play a role in a future acknowledgment of

responsibility by the State of Pakistan.

Addressing criticisms

To recap, I have discussed a number of ways in which the ICT, in cooperation with the

Liberation War Museum, can be of value to the people of Bangladesh. Beyond the fact of

bringing a handful of alleged perpetrators to justice, the process has the potential to generate

a comprehensive debate on crucial historical questions. It can also elucidate and disseminate

a more objective record of history, strengthen national judicial capacity and the rule of law,

as well as the peoples trust in the legal process. Most importantly, it will give victims of

1971 atrocities a belated, but crucial chance to witness and participate in real justice,

hopefully laying to rest decades of unanswered questions and painful memories.

However, all of these important benefits may be overshadowed, or even undone, if the

reputation of the ICT is marred by criticisms levied against it, both nationally and

internationally. When looking at the criticisms voiced so far, it is clear that many have been

based more on supposition than substance; many of the criticism from local actors have

simply been attempts to obstruct and undermine the judicial process for political ends. These

types of criticisms should be ignored or dismissed.

Thankfully, other observers and monitors have provided far more constructive commentary

or even recommendations aimed at improving the process. The defence has raised someimportant legal points. The value of some of these suggestions has been recognised by the

Bangladeshi authorities who have relied on them to introduce procedural rules. This process

of developing rules of procedure and evidence is quite normal in such courts and should be

encouraged. When we look around the globe we find that none of the other war crimes courts

were blessed with perfect rules from their inception. The fact that the procedural rules of the

Yugoslav Tribunal have been revised 46 times over the last 18 years is a testament to its early

imperfections. So just as the other courts have adapted over the years, so too can the ICT

legitimately update its procedures to meet the needs of justice. The Tribunal deserves to be

given the chance to do so.

In any event, it is important that Bangladeshi and foreign observers see the ICT in context

and put their concerns about the rules or the practice into proper perspective. Firstly, it is

important to appreciate the huge difference in resources between the ICT and the other

International Criminal Tribunals. The ICT was initially allocated 1.5 million USD for its

entire life. That may sound a lot compared to the regular courts and indeed it may be hard to

justify a bigger budget in a relatively poor country. But that budget is tiny compared to the

UN assisted courts: The permanent International Criminal Court in The Hague now has an

annual budget of around 130 million USD. You may be astonished to hear that despite

having spent 800 million in its first 10 years, the International Criminal Court has onlycompleted one trial, against one defendant, and delivered its first judgment last week. The


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two ad hoc International Criminal Tribunalsone for Yugoslavia and one for Rwandahave

a similar size budget to the permanent court and together have consumed three billion USD

since the mid-1990s. For that money they have dealt with around 250 defendants. Even the

relatively modest (so-called) hybrid courts - the Special Court for Sierra Leone and the

Khmer Rouge Tribunal - cost around 30-40 million USD per year. Taking an average, onecan expect the cost per defendant in these UN assisted courts to be at least 15-25 million

USD, sometimes considerably more.

With such large budgets one would expect the trials in the UN courts to be incredibly

efficient and unquestionably fair. Unfortunately, that is simply not the case and never has

been. Let me give you a few examples of fair trial concerns in those courts to help you put the

criticisms of the ICT into perspective:

One of the criticisms of the ICT is that is has not satisfied the procedural rightsrelating to pre-trial detention. If this is correct then the procedures should be

reviewed. But when we look at the other courts we see far greater violations. In

Cambodia, the first defendant had been held in illegal detention by a local military

court for over 8 years prior to his transfer to the Khmer Rouge Tribunal. But contrary

to fair trial norms and the expectations of human rights organisations, he did not

receive any form of relief from this UN assisted court to compensate him for the

breach of his rights.

Another example relates to the speed of the judicial process. According to fair trialprinciples, every defendant has the right to be tried without undue delay. Provisional

detention, meaning prior to conviction, may become arbitrary if it goes on for too

long. Yet at the Rwanda Tribunal, around 15 defendants were held in detention for

over 10 years before the verdict against them was delivered; and two had to wait in

detention for 16 years before being judged at trial. Even at the permanent

International Criminal Court - which had the benefit of coming after the ad hoc

tribunals - the first defendant had to wait in detention for almost 7 years before

receiving a verdict, and that was on relatively minor charges. It is difficult to see how

periods as long as 16 years can satisfy the defendants right to a speedy trial.

Another criticism is that some of the crimes being tried at the ICT lack precisedefinition. This is a matter that deserves serious consideration. But a lack of precise

definition - both of the crimes and the modes of liability - has been a common feature

at all the other tribunals, especially before the first judgments have been delivered.

The Yugoslav Tribunal judges created an entire new theory of liability - called joint

criminal enterprise - that had not even been mentioned in its Statute, let alone defined.

And several defendants were convicted under joint criminal enterprise without it even

being mentioned in the indictment.

Another UN court that prosecuted persons for crimes that lacked specific definitions,was the Special Court for Sierra Leone. In that court defendants were convicted for


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the crimes of forced marriages and conscription of child soldiers, prior to any existing

definition.

These are just a few examples of the fair trial challenges faced at war crimes courts around

the world. It is remarkable to me that certain actors and organizations are more comfortable

criticizing the ICT which is trying to achieve so much with so little than they are

criticizing the international tribunals, which have achieved so little with so much.

This is not to argue that the practices described above should be taken as the benchmark. The

ICT should seek to avoid the problems seen at the other courts and aspire to higher standards.

But they do provide some context to the criticisms, particularly when you consider the

tremendous resource advantages that the other courts have over the ICT.

So it is important that outside observers put their criticisms into perspective, rather than

jumping to conclusions that the whole ICT process is doomed. Trials involving war crimes,crimes against humanity and genocide are extremely difficult to administer, it has always

been a matter adapting and improving, and none of the war crimes courts - however well-

funded - have administered flawless trials or managed to fully meet the expectations of the

parties, the public, or human rights organizations, let alone the victims. In fact at all the

courts there have been major fair trial concerns and serious disappointments as the judges and

lawyers alike have struggled to deal with the novelties and complexities of mass atrocity

cases.

Yet despite all the challenges and imperfections and disappointments, these processes of

accountability have been worth fighting for. Not only do they bring serious perpetrators to

justice, but they also help societies turn the page and help people to move forward with their

lives.

When discussing judicial procedures, it is always worth remembering that procedural fairness

is crucial for both the accused and the victims. Not only does fairness help ensure that the

court reaches the right verdict, but it also helps to legitimize the process and to counter any

improper attempts to discredit the court. What determines the successes and failures of a

tribunal is not the quantity or validity of the criticisms, but how those responsible for the

difficult task of prosecuting and adjudicating the crimes respond to the legitimate needs ofjustice.

Conclusion

From a historical point of view, proceedings dealing with international crimes are a unique

opportunity to clarify pivotal historical events on the basis of a thorough examination of

available evidence, and within the context of an adversarial debate. Arguably, no other

environment can create comparable conditions for reaching objective conclusions on key

historical questions. If the judicial process is managed well, the benefits can be felt forgenerations to come. Those involved in these important endeavors must not become


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overwhelmed by the challenges or disillusioned by the criticisms, but must continue to strive

to make sure that justice is done.

Over the last 16 years - despite the often sensitive political environment in which it had to

operatethis Museum has worked tirelessly to keep the memory of the Liberation War alive

and to provide some comfort to the many victims and their families. I have no doubt that the

Museum has and will continue to serve as an inspiration to countless other projects around

the world dedicated to truth, memory, and justice. It has been a real privilege to speak to you

today and to be able to express my congratulations to the Museum for its tremendous

achievements.

Dhaka, 22 March 2012


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International Criminal Tribunal (ICT): Responding to its recent critics

Professor Rafiqul Islam

Two recent reports on ICT by the UN Working Group and Aljazerra have attracted national

and international attention. They show their sensitivity to the pre-trial custody of the allegedaccused facing trials and insensitivity to the pursuit of justice for the victims.

Working Group: Its Opinion No. 66/2011 (Bangladesh), submitted to UNHHR on 6 February

2012, states that after more than one year in pretrial detention ... the defendants have not yet

been formally informed of the charges (para 42). It makes the final deposition that such

detention is arbitrary and constitutes a breach of Article 9 of the UDHR and Article 9 of

the ICCPR, falling within category III of [arbitrary detention] cases submitted to the Working

Group (para 43).

The report is a response to communications submitted by the defence in the trials on behalf of

6 specified detainees, namely Motiur Rahman Nizami, Quader Molla, Kamaruzzaman, Ali

Hasan Mujahid, Delwar Hossain Sayedee, and SQ Chowdhury (paras 3-33). The Working

Group forwarded these communications on 12 September 2011 to the government, which did

not respond or refute the allegations in the communications (para 40). So the defence

arguments in the communications, without any inputs from the government, formed the sole

basis of the opinion. This contextualisation of the report is crucial, which clearly renders it

one-sided by any standard. The two yardsticks used are UDHR and ICCPR. UDHR has its

own merit and moral force but, being a UN General Assembly declaration, is not binding for

any country. Being a party to ICCPR, its provisions are applicable to Bangladesh, which has

a right to respond but not exercised.

In order to be arbitrary, a detention must be indefinite and lack of predictability. This

requirement is consistently been advanced by a whole range of decisions by the International

Human Rights Committee exemplified by A v. Australia 1997 (para 9.2). Indefinite and

unpredictable detentions become arbitrary when no charges are framed and trial

commenced, such as the detainees in Guantanamo and other secret prisons in various parts of

the world controlled by CIA under its rendition program oftortures. After ten years, there are

Guantanamo detainees without charge and trial and the US is likely to use them as trade-offs

in its ongoing talks with the Talibans. There appears to be no particularised report, like

Bangladesh, by Working Group on arbitrary detention in Guatanamo, except a general one

which is barely more than a whisper and far less than a roar. Alleged perpetrators of

international crimes are usually taken into custody on the basis of a prima facie finding,

which is conclusively proved beyond doubt in trials. This explains why high profile heads of

states like Pinochet (Chile), Milosevic (Yugoslavia), Karadzic (Serbia), Taylor (Liberia), and

many others had either spent, or are spending, a substantial period of time in pre-trial

custody. The UN Criminal Tribunal for Rwanda has detained some of its suspects for more

than 10 years (Radio Netherlands Worldwide, 15/2/2012). The UN-Cambodia Chamber held

the alleged genocide perpetrators for more than one year before the commencement of formal

trials. Has the Working Group produced any report on these tribunals' pre-trial detention asarbitrary? The answer is no. Have these tribunals, despite their UN involvement and a big


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of international law is yet another manipulation explained above. Azam is charged not as a

former Islamist leader but for his alleged commission of war crimes in 1971. It not the

belief of ICT that Azam collaborated with Pakistan army but the history and Azam's record

speaks louder than what the reporter is inclined to hear. Of course the crimes were

committed more than 40 years ago. So did the Cambodian genocide in 1970, which arenow on trial. Even today, trials continue for crimes committed during the Second World War.

Excesses of the reporter's imaginative journalism abound.

The claim that the 89-year-old Azam cannot walk, cannot see, nor can he really hear has

been refuted by his medical team (DS 17/2/2012). His age is no bar to face trials. All four

accused in the Cambodian trial are aged between 85 and 88 years. Ieng Thirith, a woman of

86 years old, was found medically unfit for trial in November 2011 but the Cambodian

Chamber held that her health could improve during trials. Demjanjuk was 89, suffering from

leukaemia, a trapped nerve, and gout, extradited from the US to face Nazi war crimes trial in

Germany in 2009 and he was brought to the court in a wheelchair. I can prepare an endlesslist of war criminals, who face trial at around the same age as Azam (viz Boere 88, Storms

90, Hajda 85, and Scheungraber 90). The reporter's speculation that Azam's punishment

would be at the price of throwing Bangladesh into further political instability is

preposterous. It ignores the overwhelming popular support for the trial expressed in the 2008

election. Not to try the alleged accused can trigger serious political unrest. The reporter is

inherently dismissive of Azam trial, blatantly biased, and profoundly unprofessional.

AlJazerra's defence is its right to freedom of expression, which wants us to listen to things

that we dislike or views that we disagree. But freedom of expression must be balanced by its

accompanied obligations. There is no legal right with duty-free application. AlJazerra'sreporter has interrupted this balance through inconsiderate, provocative, and irresponsible

media casting in public domain. The media right to freedom of expression must be guarded

not only against its deniers and suppressers, but also against those who use it cynically and

deliberately, like Nicolas Haque, as a licence for voluble bullies and stratagems to assault on

the feelings and rights of the overwhelming silent majority seeking justice.

Prosecution, conviction, and punishment of perpetrators of international crimes are on the

increase. The international community and the UN have been in favour of ending the

impunity and immunity of these perpetrators by bringing them to justice. Amidst these

developments, these two reports have failed to endorse, not even in principle, any need to

render justice to the victims of the 1971 war crimes. Such a positive approach with

recommendations for improvement in ICT's performance would have been rewarding for

Bangladesh. Instead, they ill-conceived the facts and unduly pursued a heavy-handed and

partisan approach that serves the sectarian interest of those subverting the course of justice.

Why are these reports on ICT and not on other tribunals with long pre-trial detention and

trials of ageing with ailments? Can the Working Group and AlJazerra answer why are only

the Africans prosecuted before the ICC with no decision yet in 2012 for trials it initiated in

2003? This is a price one has to pay for being poor, powerless, and voiceless in asymmetricglobal power-games. Bangladesh was born defying formidable resistance. Given the


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resources, lobby, and connection of the alleged accused and their allies nationally and

internationally, relentless opposition to ICT for immunity to prevail over justice is expected.

The quest for justice heeds only constructive, not lacklustre and gerrymandering, criticisms.

25 February, 2012

____________________

The writer is Professor of Law, Macquarie University, Sydney, Australia.


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Lobbying to prevent justice?

Arman Rashid

A recent article published in St. Louise Today, titled Missourian in quest to free Bangladeshi

newspaper owner from jail, by Mr. Bill Lambrecht, talks about the current lobbyingcampaign against the International Crimes Tribunal (ICT) of Bangladesh, led by aWashington based lobbying firm Cassidy and Associates and its chairman Mr. Gregg

Hartley. This article describes the campaign to free Mir Quasem Ali, owner of a newspaperand a leader of Jamaat-e-Islami, who is currently in custody for war crimes in Bangladesh.While this article merely quotes Mr. Hartley and certain other critiques of ICT, it ignorescertain other facts and clearly demonstrates either a bias or a lack of information that I willhighlight in this writing. A more unbiased title could have been Missourian in quest to freeBangladeshi accused war criminal from jail, which would have been closer to the truth.

The article asserts that Mr. Alis political affiliation with Jamaat-e-Islami played a major role

in his arrest. It is important to distinguish whether this political affiliation was the cause ofhis arrest or the cause of his alleged engagement in the war crimes during 1971. In order tounderstand this political affiliation, readers should know the current role of Jamaat-e-Islamiin Bangladesh. This Islamist party is in the forefront in spreading religious fundamentalism,Islamic extremism, anti-Semitism and widespread hatred against racial and religiousminorities in Bangladesh. They are also the primary advocates of replacing the currentsecular constitution with Shariah laws. These political views led many of the leaders andsupporters of Jamaat-e-Islami to conduct heinous atrocities, in the name of Islam, during theLiberation War of Bangladesh in 1971, which resulted in the deaths of millions of civiliansand the rapes of 200-400 thousand women. So, while these crimes may very well have beenmotivated by political affiliations or ideological stance, the current tribunal is prosecuting

them as individuals for their individual crimes.

It must be highlighted that while Mr. Gregg Hartley is lobbying for the accused war criminal,his primary motivation to push this cause is instigated by a $500,000 fee as mentioned in thisarticle. It is important to note that this lobbying campaign is not funded by any human rightsgroup, but financed by an accused war criminal and his family. Other than mentioning theamount, the article does not probe how Mr. Ali or his family managed to transfer such a largesum, circumventing Bangladesh Governments strict regulatory policies regarding foreigncurrency remittances, without violating any local or international money laundering laws.Even though the legal obligation for the lobbying business doesnt require having an ethicalagenda, the question still remains how a lobbying firm can legally take a case with the agendaof influencing, impeding or, more importantly, delegitimizing an ongoing judicial process. Iam curious if it would have been legal for Cassidy and Associates to be engaged by OJSimpson for the purpose of freeing Mr. Simpson by influencing the trial or its proceeding

through lobbying efforts. Even though the lobbyists are not ethics bound, the politicianssurely are. People will surely remember who among their lawmakers end up taking the sidesof accused war criminals. I am sure that the Bengali community, all over the US, will beclosely watching how many house representatives and senatorsjoin this campaign and willsurely remember them at the time of their next elections.

Even though Mr. Hartley claims that his client Mir Quasem Ali is arrested only because of

his anti government criticisms through his newspapers and television channels, Mr. Hartleyfails to show why the current accusations against Mr. Ali arebaseless, especially when Alis
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own defence team admits that, during the war in 1971, he was a member of a pro -Pakistanmilitia while in his 20s, as mentioned in this article. Isnt it up to the tribunal to decide the

depth of his engagement based on testimonies and evidences?

Since Mr. Harley is not a lawyer of the defence team, only a lobbyist for the people who can

afford him, regardless of their background, to gain access to his political connections, I guesshe is only doing his job and it is unfair for me to ask him that question. However, in thearticle Mr. Alis son Mir Ahmed was quoted that their newspaper, Daily Naya Diganta, is the

only newspaper vocal about the injustices by the ruling regime. Anyone familiar with

Bangladeshi newspapers and media channels knows, there are at least another half a dozennewspapers in the country that are equally harsh in criticizing the current government as theDaily Naya Diganta, and their owners are not being arrested with the accusations of warcrimes. So the allegation of Mr. Ali being arrested because of his media outlets doesnt holdmuch water.

While this article quotes Reporters Without borders for ranking Bangladesh 129th out of

179 countries, evaluated for their freedom of press, the author conveniently ignores that it isstill a lot better than India (131), Israel (133), Russia (142), Mexico (149) and Pakistan (150),even USA is ranked 47th in that index, which is a even lower than some of the third worldcountries in Africa such as Niger (29), Ghana (41) and Botswana (42). The author alsoignores the fact that, according to the same organization, this ranking for Bangladesh actuallyimproved during the current administration (2008-2012) compared to the prior governments.So, using the same credible sources as the author (i.e. Reporters without Borders), how can

it be explained that the current government is cracking down on the press for their criticisms,as the article was trying to insinuate, and at the same time the overall raking for the freedomof press is improving in the country? The article also points out the recent killings ofreporters in Bangladesh.

Journalism is indeed a dangerous occupation there, and many journalists were murdered inthe past few decades, but how many (if any) of those murders were state sponsored? I fail tosee the relevance of this anecdotal information in this article, unless the author is implying alink between these murders and the alleged state policy for media suppression. Anyone doingany bit of homework on this subject will know that many of these journalists in the past werekilled, because of their secular views, by the same religious extremisms preached by Jamaat-e-Islami in which Mr. Ali is a prominent leader.

The article also refers to the criticisms against ICT made by certain individuals and

organizations, but it fails to indicate the existing challenges for those criticisms. For instance,Mr. Stephen Rapp, the US ambassador at large for war crimes, was heavily criticized forrecommending the ICT to adopt the Rome Statue, a legal framework for the ICC(International Criminal Court), when he clearly knew that the ICT is not an international

court but a domestic one, the statue did not have the jurisdiction to prosecute crimes that

took place prior to 2002, and, most importantly, when his own country, United States, isneither a signatory member of the Rome Statue, nor is it compliant to many of its provisions.Human Rights Watch, another organization that the article quotes, was also criticized forpublishing a report alleging Bangladesh government for intimidating defence witnesses at atime, long before the names of the witnesses were disclosed to the ICT and when thegovernment or the prosecution team didnt have any way of knowing who those defence

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Similarly, the UN group for arbitrary detention, another group the article refers to, was alsocriticized to publish their report based on the claims from the defence team alone, withoutany known independent investigation on their part, when the Bangladesh government failedto respond to a letter with those allegations. So, while by referencing these criticisms thearticle shows how this lobbying campaign against justice is gaining steam in the international

community, it fails to scrutinize or even question the legitimacy of any of those criticisms.

Many of the accused war criminals in ICT are current and former leaders of different politicalgroups. But does that make these trials political? In order to understand that, one must look atthe history of Bangladesh and the birth of this tribunal. Soon after Bangladesh won itsindependence in 1971, there were many outstanding accusations against the currently accusedwar criminals, so they fled the country to evade prosecution. The first war crimes tribunalwas created under the 1973 act, which prosecuted and convicted many, between 1972 and1975. Unfortunately, in 1975, with the murder of the national leader in a military coup, thesubsequent dictators dismantled the tribunal and released all the war criminals, even theconvicted ones. It was in this political atmosphere, many of the currently accused war

criminals were able to return to Bangladesh, assimilate in the political arena to strengthen andlegitimize the dictatorship.

After overthrowing the last dictator in 1990, democracy was resurrected in Bangladesh andthe victims of 1971 could once again voice their demands to bring those perpetrators to

justice. Slowly their voices were strengthened and this demand became a national outcry forthe people of Bangladesh. Unfortunately, in the current political atmosphere, while BNP(Bangladesh Nationalist Party), the other prominent party besides Awami League, iscurrently in a coalition with Jamaat-e-Islami, which was led by these accused war criminals,Awami League became the only hope to ask for justice for the victims of 1971. In 2008national election, Awami Leagues landslide victory was primarily contributed to this

national mandate for bringing an end of impunity for the war criminals.

After the election, the current government amended the 1973 act, allowing more rights andcivil liberties for the accused in accordance to the ICCPR, and then created this independenttribunal to fulfil their pre-election promise and to address this national mandate. The victimsof 1971 can finally see some hope for justice after waiting 40 long years. So, even though thebirth of this tribunal was only possible through a campaign for justice and a democraticpolitical process, people who voted in 2008 election and expressed their demand throughtheir ballots, do not think these trials to be politically motivated. In order to keep theirpromise, the Awami League took a huge risk considering the ominous political unrest,

backlash and turmoil these trials can instigate, but we are still glad that they took that risk forthe sake of justice and ending impunity. Now we can only hope that the administration willcontinue their support for the ICT and endure the storm clouds that are looming in thehorizon.

December 10, 2012

Arman Rashid is a Toronto based writer, blogger and campaigner for justice for the crimes committed in 1971.
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Toby Cadman: A crusader for rights or devils advocate?

Shah Ali Farhad

The International Crimes Tribunal (ICT) is not new to criticisms. Since, its inception it hasbeen subjected to sustained and persistent criticisms both from the domestic as well asinternational quarters. And to be brutally honest, some of these criticisms do have somesubstance. Nonetheless, one must concede for the sake of being fair to both sides that some ofthese criticisms have ranged from being a bit overstretched to being downright absurd.However, that is not the focus of this write-up, although it was originally supposed to havebeen.

I was researching the web for writing an article on the ICT comparing its workings with otherwar crimes trials currently operating in the world as well as ones which have been concludedin the past. But, the concentration of my research changed somewhat when my search came

across one name over and over again: Toby Cadman.

I noticed Mr. Cadman is not only the principal author of materials on the ICT, but also aprincipal subject of news reports himself in this area. This struck me as somewhat strange, asbeing a barrister myself, I know for a fact that barristers are not much media savvy and rarelywould one find the name of any barrister frequently in media reports, notwithstanding hisprofessional fame or prowess. This is not due to any social handicap that we barristers sufferfrom, but because it is part of our professional etiquette not to express personal views in themedia about any case. Thus, I decided to follow the trail of materials and news reports. WhatI found was not only astonishing but frankly shocking.

Firstly, it is important to address the primary question: Who is Mr Toby Cadman? Mr.Cadman is a barrister specializing in international criminal law, with particular knack forsuch areas as war crimes, international terrorism, extradition, judicial review, prison law andhuman rights law[1].Thus, when someone with his skills and expertise writes and speaks ona war crimes tribunal, there is never any doubt as to his credentials. However, credentials andcredibility is not one and the same thing, and the former on its own cannot establish the latter,and therein lies the predicament. Regarding Mr Cadman vis--vis the Bangladesh ICT, hisother role is that, as of October 2010, he has been instructed with Steven Kay QC and JohnCammegh (his colleagues at 9 Bedford Row International, a barristers chambers in London,UK) by Jamaat-e-Islami to represent their high ranking members currently being prosecuted

by the ICT for war crimes committed in 1971 [2]. Hence, he is in laymans terms, the paid

attorney for the defendants being prosecuted by the very Tribunal he is seen criticising inevery conceivable forum at every possible opportunity. It does not take a rocket scientist tocome to the conclusion that there is a very strong case for conflict of interest whenever Mr.Cadman would try to portray a perception of neutrality, having us believe that he is somehowan independent expert in this matter with no interests in its outcome.

Mr Cadman however, is simply not a specialist in war crimes. He is a man of many talents.He is simultaneously a lawyer, a lobbyist (he himself has admitted that and in any event it isquite obvious from his conduct as well as shall see), an activist (quite apparent from hisactivities as we shall see) and an academic (from the amount of literature he generates onwar crimes in general and the ICT in particular). One cannot help but be astonished at howmulti-talented Mr Cadman is, and I am not being sarcastic here.
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His skills as an international lobbyist compels him to fly to various cities like Jeddah to pressupon individuals/governments who have influence to pressurize the Bangladesh government,to either stop the trials altogether or at least undertake (as he claims) much needed reforms atthe ICT. Mr Cadman chose his forum quite well, as there are millions of Bangladeshiunskilled workers employed in the Middle East, who send billions of dollars every month

back to Bangladesh. Export of unskilled manpower is actually one of Bangladeshs biggestexport sectors. Moreover, the Arab region is a diplomatic and political stronghold for Jamaat.Not surprising given that Jamaat is an Islamist party. Thus, if any region has the ability tohurt Bangladesh where it hurts most, the purse, it is the Middle Eastern regions. Veryeffective tactic on part of Mr Cadman, but a low blow nonetheless. He has mounted similarappeals to the European Union (EU), the Organization of Islamic Conference (OIC) and theUnited Nations [3].

Mr Cadman is also quite adept at international diplomacy. He has said that if Bangladeshpresses ahead and convicts the accused through these trials: the consequences will be grave:the country will be diplomatically isolated. Quite a strong prediction, given Bangladesh is

trying its own war criminals, in its own tribunal, pursuant to its own laws, financed by itsown resources and mandated by its own electorate. Even if these trials leave much to bedesired in terms of the standard of to be expected from an ideal judicial proceedings,nonetheless, even its strongest critics would probably fall short of saying that carrying outany sentences which may be passed by a legitimate tribunal would render a country adiplomatic pariah. If the legitimacy of high profile trials could render a country isolated, thenIraq would have been isolated completely after Saddam Husseins trial or Israel after the trialof Adolph Eichmann.

Mr Cadman has also demonstrated that he is somewhat of a prophet too, particularly one whomakes grave and dire prophecies. Speaking to the Saudi Gazette [4], Mr Cadman made someinteresting predictions regarding the fate of his clients. He said that some of his clients wouldbe executed before the 16th of December, and the others before 25th of March the year after.16th December and 26th March are symbolic dates for Bangalis as they celebrate theirVictory Day and Independence Day respectively on these dates. I am curious to know

how Mr Cadman comes up with such precise predictions. Whether these prophecies hold trueor not only time can tell, but for the time being his predictions stand thus: a) All his clientsare bound to be convicted; b) Death penalty would be imposed in respect of each and everyone of them; and c) The dates of their executions are confirmed. Unless Mr Cadman hasfigured out a way to see into the future, or has been confirmed of the future convictions andsentences of his clients by the ICT itself, I find it difficult to pay any heed to such

unsupported claims. The problem is, whether or not these predictions have any substance,they nonetheless contribute towards generating an overall negative perception against ajustice process which a whole nation holds dear.

However, that is not the limit of his talents. His versatility includes a flare for public speechesat political rallies. He appeared and gave a speech at the East London Mosque, organized bythe so-called Bangladesh Crisis Group (which is in fact simply an offshoot of Jamaat-e-Islamis British chapter Islamic Forum UK) on the 3rd of October 2011 [5]. This rally was

co-organized with groups of dubious and questionable allegiances, such as the MuslimBrotherhood. In fact, the rally was chaired by one Kemal Helbawy, someone who mournedthe death of Osama Bin Laden! Note this part of his speech where he commented on the

political climate of Bangladesh generally: The complete breakdown in democracy, thebarring of freedom of expression and freedom of assembly. Its difficult to say whether I am


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listening to a barrister working on a case or a rhetorical political speech being given at PaltanMaidan (a famous place for political rallies in Dhaka) by the leader of Bangladeshs

opposition.

It is quite clear that Mr Cadman is extremely passionate about his clients. Perhaps a bit too

passionate for a barrister. He has made his point quite clear, that being; his clients are notgetting trials of the standard they deserve. However, no matter what ones personal stance on

the case maybe, members of the bar are trained for obvious reasons, to maintain theirindependence and objectivity under all circumstances.

His passion was noticeably felt clouding his judgment and compromising his objectivitywhen flouting all rules, professional decorum, and procedure Mr Cadman and his colleaguesat 9 Bedford Row International sent a serving judge of the ICT (its Chairman) a personalemail asking the judge to recuse himself from the trials for apparent bias [6]. The court

itself expressed its dissatisfaction at this conduct and felt that it was contemptuous of thesebarristers to raise such a matter in such an inappropriate manner considering that a formal

petition for recusal by the defence was pending as a scheduled item to be heard in the openTribunal two days later. They also identified couple of breaches of the Code of Conduct forBarristers in England and Wales and referred the matter to the regulators of barristers, the BarStandards Board.

Regarding this incident, the following struck me as very inappropriate behaviour on part ofMr Cadman and his colleagues: First, they were acting withou t the lay clients permission orinstruction, given that Mr Sayeedee on whose behalf they claimed to act flatly denied anyknowledge of such application or even the knowledge of instructing them even; second, theywere being disrespectful to a current serving Justice of the Supreme Court of Bangladesh, byasking him to recuse himself by email correspondence. A barrister of his stature should havebeen mindful of the fact that what they did was simply not the way to communicate with aserving judge. Now, Mr Cadman and his colleagues would have us believe that they werevery respectful in their language, which they were to be frank. However, such a defence failsto address the point that the disrespect stems not from the language itself but from the overallmanner in which they conducted themselves vis--vis such a senior judge; third, they were

being completely disregardful of the tribunals procedure, by communicating such a formal

matter as application for recusal of judge by email and not following the appropriatechannels; and finally, and most disturbingly, allowing a copy of the letter to be disclosed tothe media before it could be considered by the tribunal. Not only that, suspiciously enoughthe media outlet getting a hold of the copy and publishing it before it could be perused and

decided upon by the ICT was none other than theDaily Sangram, the de facto mouthpiece ofJamaat [7]. This had the effect of undermining the judges duties in public and serving as asource of major embarrassment for a serving Justice of the Supreme Court. Whether this wasdone by Mr Cadman and his colleagues deliberately, or without their knowledge by someother vested quarter, is immaterial. As counsel, they should have been mindful of theconfidentiality of communications. Guarding against improper disclosure was undoubtedlytheir responsibility. This is especially true given that the correspondence was made in theofficial letterhead of 9 Bedford Row and was signed by all three barristers in question.Hence, the blame flatly lies with them, notwithstanding that it may be shared by others too.

More fundamentally however, it needs to be asked whether it was actually necessary to go

through such an extreme and potentially contemptuous manner of making your objectionheard? This incident happened when the local defence team of Jamaat had already filed an


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official application with the tribunal on the same subject matter. It was a pending matterwhich was fixed for hearing on a certain date in open court, rendering the whole emailincident completely and unnecessary. One can only speculate as to the benefits to be gainedby their clients from such a highly unorthodox move, apart from gaining irk of the tribunal.

Although, the complaint against the three barristers including Toby Cadman has beendismissed by the Professional Conduct Committee of the Bar Standards Board in respect ofthe allegations of two specific breaches, this however does not clear their name completely inmy eyes. Mr Cadman would have us believe that this rejection by the Committee somehowshows that he was fully within his rights in doing whatever he did, however, one should alsonote that the Committee considered only two specific allegations put forward by the tribunaland did not award an overall bill of clean health to Mr Cadmans conduct generally. Thetribunal had mentioned the issue of contempt of court, but allowed the allegations ofmisconduct under British professional rules be investigated first. Thus, the issue of contemptof the tribunal is still left unresolved and technically there is a chance that the matter berecalled for determination once the workload of the tribunals have lessened somewhat.

I feel however, that Mr Cadman should count his blessings that the tribunal was kind enough(or not vengeful enough) not to prosecute him and his colleagues for contempt of court, sincein my opinion, his conduct in this email fiasco clearly crossed the contempt threshold as perthe prevalent laws of Bangladesh. In UK too, it is arguable that Mr Cadman and hiscolleagues conduct would have been found as tantamount to contempt of court. If

improperly communicating with a juror or shouting at a judge can be a contempt of court, byanalogy, being disrespectful to a judge out of court (as in improperly communicating with the

judge, telling him to step down by email) should also be considered contempt in my opinion[8].

However, unfortunately, what Mr Cadman makes up in passion, he clearly lacks in his holdof history and current affairs. For example, in an interview to Arab News [9], Mr Cadmanopined that targeting a reputable Islamic party like Jamaat will have dire consequences andwill affect Bangladeshs reputation in the Islamic world.

Such a comment is objectionable because it presupposes the positive reputation of Jamaat, anIslamist party which openly participated in the atrocities of 1971 and currently serves as anumbrella political front for all Islamist extremist groups in Bangladesh. It was founded byMaulana Maududi, someone credited with the spread of the strict fiery bandDeobandi/Wahabi version of Islam. In fact, it is widely accepted that his teachings greatly

influenced the Grand Ayatollah Khomeini of Iran. This demonstrates Mr Cadmansshortcomings in his knowledge of history. Perhaps, before he gives any such glowing butclearly wrong reference for the undeserving, Mr Cadman would be better advised to visit thelocal library or at the very least conduct a Google search on South Asian history in generaland the history of Jamaat in particular. I am sure he would find it amusing, especially whenhe comes across the fact that Maududi, whose party he so adamantly defends not only legallybut politically too, is known to have equated the legal profession to that of a prostitute, beingindividuals who would do anything for money.

He further commented that It (the government) is actually punishing the Jamaat for siding

with the last BNP government. It seems Mr Cadman is not aware of the recent political

realities underpinning these trials. The Awami League government came to power in 2009through a landslide victory principally on the promise of trying the war criminals. If it didnt,


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it would have been shown the door by the general populace long ago. Whatever the AwamiLeagues motivation maybe, trials of the war criminals is at todays date, a national demand.

To say, that these trials are motivated by the urge to punish Jamaat for siding with the BNP inthe last elections, belittles the huge loss Bangladesh suffered in 1971 and the willingness ofthe people to bring the perpetrators to justice. It also shows a blatant disregard for the public

opinion as evidenced by the resounding endorsement in the last general elections thegovernment received for holding these trials. It is good to protect ones clients interests

fearlessly, as required by the Code of barristers, but it has to be done by using all lawful andproper means. It is arguable that such insensitive comments undermining the struggle of anation to bring to an end its worst chapter in history, does not fall under the definition ofproper in any dictionary.

Although I am not sure whether he is motivated by a need to be in the limelight or genuinelyhelping his clients cause, one thing is certain, he certainly believes in taking the fight to theopposition. This is visible from the amount of interviews and statements he gives all the timeto all forms of media discrediting the ICT.

In addition to the print media (mostly Arab ones) and TV news channels (Al Jazeera seems tobe his favourite among them) Mr Cadman is fighting the battle for his clients quite vigorouslyin the social media scene as well. He likes to upload videos of himself in various interviews,seminars and rallies in Youtube by his own account (tobycadman) or his chambers

(9BedfordRow) [10]. He maintains a page in Facebook, titled Toby C

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