Statement by Lord Avebury, Chairman of the International Bangaldesh Foundation and Co-Chair of the Chittagong Hill Tracts Commission.
On July 27, Lord Avebury received the Law Minister of Bangladesh, Mr Shafiq Ahmed at Flodden Road.
They discussed the progress towards implementation of the Chittagong Hill Tracts Accord, which is part of the programme of the AL government and a personal commitment of the Prime Minister, Sheikh Hasina. Lord Avebury drew the Minister’s attention to copies of two letters addressed to the Prime Minister by the co-chairs of the CHTC, recently:
Lord Avebury also drew the Minister's attention to a statement made by the co-chairs about the recommendations made by the UN Special Rapporteur on Indigenous Issues to the Government of Bangladesh and to the United Nations system to hasten the implementation process of the 1997 CHT Accord that was signed at the initiation of Honorable Prime Minister:
The Minister and Lord Avebury also discussed the war crimes trials, and agreed that it was right and proper to bring alleged perpetrators of crimes committed during the liberation war to justice. The victims and the bereaved must have redress for the appalling offences committed at that time. Lord Avebury handed over a list of points he suggested might be addressed, see amended copy below, to ensure that the conduct of the trials would be fully in accordance with modern international norms, developed in the Rome Statute and connected procedures. The Minister said that the Bangladesh government had responded fully to the points raised by US War Crimes Ambassador Rapp in his letter of March 21, 2011. He said it was not necessary for the defendants to be represented by counsel of their choice, and that any lack of relevant experience on the part of Bangladesh counsel could be made up by training.
Matters of concern regarding the war crimes tribunal
(1)The refusal to allow foreign counsel to appear before the Tribunal. The decision maker, the Chairman of the Bar Council, is the Attorney General, a government appointee and a member of the prosecution team in the Chowdhury case at least. The Bar Council considered that the law doesn't allow foreign counsel to appear, a matter that should be rgued.
(2) A number of members of the Tribunal participated in the Peoples' Inquiry Commission (or People's Court) that prejudged these cases in the early 1990s. Trials were held in which real suspects were convicted and effigies burnt to show the sentences of death passed. Some of those convicted then are now accused before the Tribunal - a copy is extant of the report naming the Chairman of the Tribunal as a member of the Commission;
(3) The failure to implement most of Ambassador Rapp's recommendations. Despite what may be said as to their effect, the Rules of Procedure are now worse than they were before. The Law Minister holds regular "strategy" meetings with the judges and prosecutors, which is inappropriate;
(4) The failure to amend the Act and the Constitution. The Law Minister represented to Ambassador Rapp that the Constitution couldn't be amended. This was untrue as the First Constitutional Amendment, the most egregious piece of legislation, was amended to the further detriment of accused. This was a misrepresentation to the US Government. Further, the Bangladesh Chief Justice misleadingly stated that interlocutory appeal lies with the Supreme Court, when there is no appeal except against conviction and sentence. There is no scope for challenging the judges, the Act, the Tribunal or any decision it issues. The Tribunal has adopted a rule that allows for review of its own decisions, the same judges being involved;
(5) Despite strong representations to act impartially and transparently, the Tribunal at the last hearing refused to give copies of written orders to the defence;
(6) At the last hearing the Tribunal in summing up the positions of the parties, made argument on behalf of the prosecution that were never made. This was clearly an attempt to bolster weak arguments by the prosecution;;
(7) Until recently the prosecution had failed to disclose a single piece of paper, though now the papers in relation to Sayedee have just been handed over to the defence. The Tribunal had considered that the investigation is secret and therefore this was acceptable, but now the Sayedee papers have been passed over, they may concede that their former stance was counter to the International Covenant on Civil and Political Rights to which BD is a State Party;
(8) The Tribunal has shown a disregard for domestic and international law in relation to some matters. If it considers itself a domestic criminal judicial organ then it should be required to comply with domestic law. If it considers itself to be an international body then it should comply with international law.
(9) It has failed to properly define the crimes enumerated in section 3 of the Act;
(10) The authorities have taken 17 months since the Tribunal’s formation and the accused have been in custody for almost a year. However, once charged, it is possible that the defence might be granted as little as 3 weeks to prepare;
(11) The Tribunal judges, prosecutors and investigators lack experience and training in a very complex field of law. If it is suggested that they have been trained by the ICC this is untrue, as has been verified this with the ICC itself;
(12) The rules still fail to safeguard fundamental rights. The inclusion of a number of rights into the Rules will not change this, as it isn't clear how breaches of these rights can be challenged. The fact that the First Constitutional Amendment removes any rights guaranteed under the Constitution is of primary concern. This point was raised by Brad Adams of Human Rights Watch. The Law Minister's response was that "these men committed murder";
(13) The Tribunal has only targeted members of the opposition parties;
(14) The legislation is discriminatory in intent as it explicitly only allows prosecution on one side of the conflict;
(15) The Tribunal does not have the appearance of impartiality as the judges meet frequently with members of the Government and victims groups;
(16) The censoring of the media prevents any proper public debate. Any criticism of the Tribunal or the Government results in the threat of contempt proceedings, though ostensibly the concern is with accuracy of reporting and personally pejorative references to Tribunal members;
(17) There appears to be little desire to do this openly, fairly, transparently and in accordance with international norms. There is a total reluctance to have any international scrutiny of the preparations or the proceedings, to judge from the response to suggestions and criticisms by Ambassador Rapp, the International Bar Association, Amnesty International and Human Rights Watch. The way to ensure that the process is fair is to engage with international experts on war crimes trials,and to allow foreign counsel, amending the law if necessary:
(18) The allegations by S K Chowdhury that he was tortured by the RAB, on each of the three occasions when he has been brought to the Tribunal, have not been investigated.
(19) The statements made by the accused during their interrogations cannot be used in court and therefore the interrogations appear to have been pointless.
(20) As far as is known, there has been no response by the Foreign Minister or the Law Minister to the letter from Ambassador Rapp of March 21, 2011.
July 27, 2011