The International Crimes Tribunal (ICT) is not new to criticisms. Since, its inception it has been subjected to sustained and persistent criticisms both from the domestic as well as international quarters. And to be brutally honest, some of these criticisms do have some substance. Nonetheless, one must concede for the sake of being fair to both sides that some of these 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 have been.
I was researching the web for writing an article on the ICT comparing its workings with other war crimes trials currently operating in the world as well as ones which have been concluded in 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 a principal subject of news reports himself in this area. This struck me as somewhat strange, as being a barrister myself, I know for a fact that barristers are not much media savvy and rarely would one find the name of any barrister frequently in media reports, notwithstanding his professional fame or prowess. This is not due to any social handicap that we barristers suffer from, but because it is part of our professional etiquette not to express personal views in the media about any case. Thus, I decided to follow the trail of materials and news reports. What I 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 for such areas as war crimes, international terrorism, extradition, judicial review, prison law and human rights law . Thus, when someone with his skills and expertise writes and speaks on a war crimes tribunal, there is never any doubt as to his credentials. However, credentials and credibility 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-à-vis the Bangladesh ICT, his other role is that, as of October 2010, he has been instructed with Steven Kay QC and John Cammegh (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 . Hence, he is in layman’s terms, the paid attorney for the defendants being prosecuted by the very Tribunal he is seen criticising in every conceivable forum at every possible opportunity. It does not take a rocket scientist to come 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 somehow an 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 is quite obvious from his conduct as well as shall see), an activist (quite apparent from his ‘activities’ as we shall see) and an academic (from the amount of literature he generates on war crimes in general and the ICT in particular). One cannot help but be astonished at how multi-talented Mr Cadman is, and I am not being sarcastic here.
His skills as an international lobbyist compels him to fly to various cities like Jeddah to press upon 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 at the ICT. Mr Cadman chose his forum quite well, as there are millions of Bangladeshi unskilled workers employed in the Middle East, who send billions of dollars every month back to Bangladesh. Export of unskilled manpower is actually one of Bangladesh’s biggest export 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 to hurt Bangladesh where it hurts most, the purse, it is the Middle Eastern regions. Very effective tactic on part of Mr Cadman, but a low blow nonetheless. He has mounted similar appeals to the European Union (EU), the Organization of Islamic Conference (OIC) and the United Nations .
Mr Cadman is also quite adept at international diplomacy. He has said that if Bangladesh presses 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 its own resources and mandated by its own electorate. Even if these trials leave much to be desired 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 out any sentences which may be passed by a legitimate tribunal would render a country a diplomatic pariah. If the legitimacy of high profile trials could render a country isolated, then Iraq would have been isolated completely after Saddam Hussein’s trial or Israel after the trial of Adolph Eichmann.
Mr Cadman has also demonstrated that he is somewhat of a prophet too, particularly one who makes grave and dire prophecies. Speaking to the Saudi Gazette , Mr Cadman made some interesting predictions regarding the fate of his clients. He said that some of his clients would be 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 their ‘Victory 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 true or not only time can tell, but for the time being his predictions stand thus: a) All his clients are bound to be convicted; b) Death penalty would be imposed in respect of each and every one of them; and c) The dates of their executions are confirmed. Unless Mr Cadman has figured out a way to see into the future, or has been confirmed of the future convictions and sentences 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 a justice process which a whole nation holds dear.
However, that is not the limit of his talents. His versatility includes a flare for public speeches at political rallies. He appeared and gave a speech at the East London Mosque, organized by the so-called Bangladesh Crisis Group (which is in fact simply an offshoot of Jamaat-e-Islami’s British chapter Islamic Forum UK) on the 3rd of October 2011 . This rally was co-organized with groups of dubious and questionable allegiances, such as the Muslim Brotherhood. In fact, the rally was chaired by one Kemal Helbawy, someone who mourned the 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, the barring of freedom of expression and freedom of assembly”. It’s difficult to say whether I am listening to a barrister working on a case or a rhetorical political speech being given at Paltan Maidan (a famous place for political rallies in Dhaka) by the leader of Bangladesh’s 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 not getting trials of the standard they deserve. However, no matter what one’s personal stance on the case maybe, members of the bar are trained for obvious reasons, to maintain their independence and objectivity under all circumstances.
His passion was noticeably felt clouding his judgment and compromising his objectivity when flouting all rules, professional decorum, and procedure Mr Cadman and his colleagues at 9 Bedford Row International sent a serving judge of the ICT (its Chairman) a personal email asking the judge to ‘recuse’ himself from the trials for apparent bias . The court itself expressed its dissatisfaction at this conduct and felt that it was contemptuous of these barristers 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 open Tribunal two days later. They also identified couple of breaches of the Code of Conduct for Barristers in England and Wales and referred the matter to the regulators of barristers, the Bar Standards Board.
Regarding this incident, the following struck me as very inappropriate behaviour on part of Mr Cadman and his colleagues: First, they were acting without the lay client’s permission or instruction, given that Mr Sayeedee on whose behalf they claimed to act flatly denied any knowledge of such application or even the knowledge of instructing them even; second, they were being disrespectful to a current serving Justice of the Supreme Court of Bangladesh, by asking him to recuse himself by email correspondence. A barrister of his stature should have been mindful of the fact that what they did was simply not the way to communicate with a serving judge. Now, Mr Cadman and his colleagues would have us believe that they were very respectful in their language, which they were to be frank. However, such a defence fails to address the point that the disrespect stems not from the language itself but from the overall manner in which they conducted themselves vis-à-vis such a senior judge; third, they were being completely disregardful of the tribunal’s procedure, by communicating such a formal matter as application for recusal of judge by email and not following the appropriate channels; and finally, and most disturbingly, allowing a copy of the letter to be disclosed to the media before it could be considered by the tribunal. Not only that, suspiciously enough the 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 the Daily Sangram, the de facto mouthpiece of Jamaat . This had the effect of undermining the judge’s duties in public and serving as a source of major embarrassment for a serving Justice of the Supreme Court. Whether this was done by Mr Cadman and his colleagues deliberately, or without their knowledge by some other vested quarter, is immaterial. As counsel, they should have been mindful of the confidentiality of communications. Guarding against improper disclosure was undoubtedly their responsibility. This is especially true given that the correspondence was made in the official 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 objection heard? This incident happened when the local defence team of Jamaat had already filed an official application with the tribunal on the same subject matter. It was a pending matter which was fixed for hearing on a certain date in open court, rendering the whole email incident completely and unnecessary. One can only speculate as to the benefits to be gained by 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 been dismissed by the Professional Conduct Committee of the Bar Standards Board in respect of the allegations of two specific breaches, this however does not clear their name completely in my eyes. Mr Cadman would have us believe that this rejection by the Committee somehow shows that he was fully within his rights in doing whatever he did, however, one should also note that the Committee considered only two specific allegations put forward by the tribunal and did not award an overall bill of clean health to Mr Cadman’s conduct generally. The tribunal had mentioned the issue of contempt of court, but allowed the allegations of misconduct under British professional rules be investigated first. Thus, the issue of contempt of the tribunal is still left unresolved and technically there is a chance that the matter be recalled 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, since in my opinion, his conduct in this email fiasco clearly crossed the contempt threshold as per the prevalent laws of Bangladesh. In UK too, it is arguable that Mr Cadman and his colleague’s 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, by analogy, 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 .
However, unfortunately, what Mr Cadman makes up in passion, he clearly lacks in his hold of history and current affairs. For example, in an interview to Arab News , Mr Cadman opined that targeting a reputable Islamic party like Jamaat will have dire consequences and will affect Bangladesh’s reputation in the Islamic world.
Such a comment is objectionable because it presupposes the positive reputation of Jamaat, an Islamist party which openly participated in the atrocities of 1971 and currently serves as an umbrella political front for all Islamist extremist groups in Bangladesh. It was founded by Maulana Maududi, someone credited with the spread of the strict fiery band Deobandi/Wahabi version of Islam. In fact, it is widely accepted that his teachings greatly influenced the Grand Ayatollah Khomeini of Iran. This demonstrates Mr Cadman’s shortcomings in his knowledge of history. Perhaps, before he gives any such glowing but clearly wrong reference for the undeserving, Mr Cadman would be better advised to visit the local library or at the very least conduct a Google search on South Asian history in general and the history of Jamaat in particular. I am sure he would find it amusing, especially when he comes across the fact that Maududi, whose party he so adamantly defends not only legally but politically too, is known to have equated the legal profession to that of a prostitute, being individuals 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 2009 through a landslide victory principally on the promise of trying the war criminals. If it didn’t, it would have been shown the door by the general populace long ago. Whatever the Awami League’s motivation maybe, trials of the war criminals is at today’s date, a national demand. To say, that these trials are motivated by the urge to punish Jamaat for siding with the BNP in the last elections, belittles the huge loss Bangladesh suffered in 1971 and the willingness of the 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 the government received for holding these trials. It is good to protect one’s client’s interests fearlessly, as required by the Code of barristers, but it has to be done by using all lawful and proper means. It is arguable that such insensitive comments undermining the struggle of a nation to bring to an end its worst chapter in history, does not fall under the definition of ‘proper’ in any dictionary.
Although I am not sure whether he is motivated by a need to be in the limelight or genuinely helping his client’s cause, one thing is certain, he certainly believes in taking the fight to the opposition. This is visible from the amount of interviews and statements he gives all the time to all forms of media discrediting the ICT.
In addition to the print media (mostly Arab ones) and TV news channels (Al Jazeera seems to be his favourite among them) Mr Cadman is fighting the battle for his clients quite vigorously in 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 chamber’s (9BedfordRow) . He maintains a page in Facebook, titled ‘Toby Cadman Barrister-at-Law’, the recent posts in which have almost exclusively concentrated on the ICT and its apparent flaws .
His criticisms in these posts are often seen as clearly exceeding the boundaries of his case, and treading on extremely sensitive and potentially dangerous political territories. For example, note this post he published in his page on 19th November 2012: “US Ambassador appeals for calm and rational dialogue – Members of the Government Bangladesh rejects any dialogue and once again focuses on the war crimes trials. Government fast becoming a single issue political party”. Apart from this, he has made posts commenting on the Prime Minister’s statements. He wrote: “Bangladesh PM speaks of ensuring the trials take place and the duty of the Government to punish. Actually, it’s the duty of the judges to try the cases and if convicted to punish the perpetrators…” Maybe Mr Cadman failed to understand that the premier was simply reassuring a nation that they were committed to the trials, and no amount of bullying by ‘the powers that be’ can make it deviate from that commitment. In fact the PM was technically correct in stating that it is the government’s duty to punish. By the word “punish” she was obviously referring to carrying out sentences, which is indeed an executive act, as opposed to judicial. Judges only convict (or acquit) and sentence the convicted, they don’t punish. Mr Cadman, being a senior, must have known that.
He also made a comment regarding the credibility of the Chairman of Bangladesh’s National Human Rights Commission: “Chair of the Bangladesh National Human Rights Commission has lost all credibility following his recent remarks. He is supposedly the head of an independent human rights monitoring body and he speaks of the Rohingya issue as being connected…” This statement about the Chairman of NHRC also illustrates his ignorance about long standing human rights track record of the person he was criticizing. A quick reading of human rights literature that have been generated in Bangladesh in the last 25 years will surely enlighten him, and possibly even surprise.
He uses his twitter account for these ends too. For example, note this post made by @tobycadman : “Bangladesh is in great danger of stepping back into a period of communism where any dissent is punished harshly. Freedom of speech at risk” (7:55 PM – 19 Feb 12). Such comments are reminiscent of the red virus America suffered during the cold war era under the aegis of the fear mongering J Edgar Hoover. All I can and will say against this fear mongering is this: Rest assured Mr Cadman, we Bangladeshis are a very politically conscious nation and would do whatever is necessary to guard against any such red invasion.
Mr Cadman is also quite adept at misinterpreting historical events for garnering support for his version of the story. In his interview to Arab News, he referred to a statement made by Sheikh Mujibur Rahman (SMR) that Bangladeshis are a forgiving nation and that Bangladesh should look to the future not the past in the interest of peace and reconciliation. He added that this was principally the reason for the trials being abandoned in 1973 and resulted in a tripartite agreement between India, Pakistan and Bangladesh .
Such a comment reveals the following: first, Mr Cadman is himself aware that what Jamaat needs is not a fair and due process of law but an abandonment of the trials altogether. Given the overwhelming evidence against Jamaat and its leaders, no amount of fairness can save them from being officially stamped as something which the people have known and recognised for four decades. Otherwise, why would he bring up the issue of reconciliation? And second, Mr Cadman’s knowledge of history of Bangladeshi liberation struggle is insufficient to say the least. The trials were never abandoned. There was simply not the political situation to hold these trials in those times. And before, they could be revived at the right time, Sheikh Mujibur Rahman himself was brutally killed along with most his family members by people either directly or indirectly conniving with those very war criminals. He simply took out one statement by Sheikh Mujib and clearly used it out of context for supporting his contentions. The statement quoted was made by Sheikh Mujib to calm a nation frustrated from nine months of atrocities and hell bent on taking revenge against the perpetrators of such atrocities. Sheikh Mujib, on multiple occasions stated and reiterated his commitment to bring the local collaborators and other war criminals to justice. And as for the tripartite agreement he mentioned, that had nothing to do with trial of local collaborators but simply provided that Bangladesh would hand over the last remaining 195 Pakistani POWs for them to be tried in Pakistan . As I stated before, a visit to the library for some much needed South Asian history lessons is not only recommended for Mr Cadman but also necessary before he makes any such ignorant remarks.
Fundamentally, it needs to be asked whether such a campaign based strategy for defending your clients exceeds the legitimate ambit of a defence and is in fact, tantamount to an obstruction of a judicial process, since it seems obstructing this judicial process is one of his aims, if not the main aim, in conducting all these public relations/public awareness/smear/hate campaigns on multiple fronts. In any event, such conduct begs the question: As a retained lawyer, should one concentrate on defending one’s clients under the law with which he/she has been charged or undertake the monumental task of challenging the legal and political order within which that trial is taking place? It does not take a person with legal credentials to come to the conclusion that the latter is simply not the job of a retained lawyer. Maybe such a course would have been suitable if Mr Cadman returned his instructions, renounced his role as a British barrister and became a full time political activist for Jamaat.
His tactics to popularise his clients’ cause are also not above question. Mr Cadman, in various forums, has often referred to his inability to enter Bangladesh in one occasion . Mr Cadman came to Dhaka four times before this incident. He would have us believe that the reason he was stopped because he was representing Jamaat. If Mr Cadman has proof regarding what he claims to be the case, in the public interest, he should disclose it. Otherwise, Mr Cadman should be more careful before making any such serious allegations against the authorities in Bangladesh.
Mr Cadman is often seen referring to comments and reports by international organisations to bolster support for his own views about the ICT. None more so than the opinion provided by the War Crimes Committee of the International Bar Association to the UK’s All Party Parliamentary Human Rights Group, at whose behest the legal advice was prepared. Now, what everyone needs to know in this regard is Mr Cadman is himself a prominent member of that Committee [Communications Officer of the Committee].
Furthermore, the Committee has, as one of its members, Stephen Kay QC, his colleague and another counsel for Jamaat . Thus, one cannot blame a reasonable observer for making the connection between that opinion and Mr Cadman. It is quite reasonable to believe that Mr Cadman was himself involved with the preparation of that opinion. Such a belief has not been rebutted by any claims or evidence to the contrary by Mr Cadman. Thus, for the time being, the position is thus: It is clear that Mr Cadman does not mind referencing himself. He would have us believe in the neutrality of a document, which was arguably prepared with his own active or tacit participation. As someone who always seems to hammer home the point regarding ‘full disclosure’, one can only say that one needs to practice what they preach.
The intensity with which Mr Cadman is representing Jamaat reveals a passion second only to Andrew Buchan’s portrayal of the eighteenth century barrister, William Garrow, in the BBC series ‘Garrow’s Law’. From the discussion above alone, I could list multiple provisions of the Code of Conduct and Written Standards for Barristers, which have been breached by Mr Cadman in his conduct as the counsel for Jamaat in the ICT trials. And yes, these are quite distinct from the ones mentioned by the tribunal itself. Nonetheless, I have deliberately omitted to do so, since I figured it does not take a course in professional ethics of barristers to know that Mr Cadman has been improperly conducting himself as a counsel or at the very least performing duties for his clients far exceeding the usual job description of barristers. I can only hope, for the sake of my fraternity, that Mr Cadman takes note of such visible infractions and conducts himself with more decorum in the future. Otherwise, he will indirectly be hurting the interests of those he seems so adamant to protect, his clients.
Shah Ali Farhad is a lawyer, lecturer, blogger, activist and campaigner for 1971 war crimes trials.
- 1. http://tobycadman.com/areaofpractice
- 2. http://tobycadman.com/notablecases
- 3. http://www.arabnews.com/saudi-arabia/international-community-urged-stop-%E2%80%98summary-executions%E2%80%99-bangladesh
- 4. http://www.saudigazette.com.sa/index.cfm?method=home.PrintContent&fa=regcon&action=Print&contentid=20121023140629&simplelayout=1
- 5. http://bangladeshcrisisgroup.com/index.php/news/69-bangladesh-state-terrorism-condemned-by-a-gathering-of-thousand-in-east-london
- 8. http://www.findlaw.co.uk/law/criminal/criminal_courts/500317.html
- 9. http://www.arabnews.com/saudi-arabia/international-community-urged-stop-%E2%80%98summary-executions%E2%80%99-bangladesh
- 10. https://www.youtube.com/tobycadman
- 11. https://www.facebook.com/pages/Toby-Cadman-Barrister-at-Law/204833906272577
- 12. https://twitter.com/tobycadman
- 13. http://www.arabnews.com/saudi-arabia/international-community-urged-stop-%E2%80%98summary-executions%E2%80%99-bangladesh
- 14. http://www.thedailystar.net/forum/2010/may/curious.htm
- 15. http://www.google.co.uk/search?hl=en&newwindow=1&tbo=d&q=cadman+denied+entry+to+bangladesh&oq=cadman+denied+entry+to+bangladesh&gs_l=serp.3…74509.83544.0.837188.8.131.52.0.0.0.385.3693.21j6j5j1.33.0.les%3B..0.0…1c.1.mCYy-13BEd0 [Notice the number of entries where he refers to his failure to enter Bangladesh].
- 16. http://www.ibanet.org/PPID/Constituent/War_Crimes_Committee/Officers.aspx