Blogosphere came alive ever since the International Crimes Tribunal (ICT) in Bangladesh started its proceedings to put an end to the decade old culture of impunity for the war criminals in Bangladesh. Newspaper and research articles, seminars and open campaign for and against the ICT followed suit. People opposing the ICT could not gain much ground within Bangladesh where the general population are aware, and many are the direct victims of the atrocities committed by the Pakistani military in 1971 with the help of a group of militia thugs and collaborators. However, since most of the currently accused war criminals happened to be the present and former leaders of a fundamentalist Islamist political party, Jamaat-e-Islami, with a deep pocket and equally deep rooted political connections in the Middle East, they are attracting a lot of attention in the international arena through their continuing propaganda and lobbying campaign abroad. Many of us had been watching from the sideline, while this nonsense propaganda continued for years and these misconceptions about ICT spread in the hands of the defence team and their political affiliates. This led me to pick up the pen and start writing about it.
Recently I sent an email to Mr. Morris Davis, the former Chief Prosecutor of Guantanamo Trials, in response to an article that he wrote criticizing the ICT. In my email I pointed out the information that was missing from his article and requested him to add those facts for the benefit of his readers. This email was also published on a few blog sites. While Mr. Davis responded back informing me that he wont be able to “do a follow-up” to his article, I was truly surprised when the response came from Mr. Toby Cadman, a barrister hired by the defence team of the currently accused war criminals, on his Facebook page criticizing and challenging the facts that I presented in my email. Even though both Mr. Davis and Mr. Cadman are fully within their rights in criticizing ICT, any criticism can become a suspiciously dogmatic propaganda if it contains half-truths, non-disclosures and misrepresentations. Lets take a look at how Mr. Cadman responded:
“The International Crimes Strategy Forum (ICSF), an institute known for its relentless campaign on initiating war crimes trials, and the less than virtuous attack on any voice of opposition to the Bangladesh International Crimes Tribunal, published today a response to a paper by Morris David of last year. It is noteworthy that Morris Davis, formerly Chief Prosecutor at Guantanamo, published the article under the Crimes of War Education Project, in which he criticised the ICT and the Bangladesh Government for failing to uphold international standards. He also spoke of the attempts by the pro-Awami League Government to silence me as a representative of the defence.
. . .
The response, written by Arman Rashid, a member of the Bangladeshi Diaspora, raises a number of interesting issues. I will respond to the comment that he makes about me. He states:
. . .
[The content of my email can be found here.]
. . .
It is interesting that Mr. Rashid considers it appropriate for a member of the defence to be silenced at a public event. He also focuses on my grief for not being admitted to the Bangladesh Bar. What Mr. Rashid omits is that the Tribunal’s own Rules of Procedure provides for foreign counsel both for the prosecution and the defence (see Rule 42). The issue was never being allowed to practice law in Bangladesh, that would require having Bangladesh citizenship and being admitted to the Bar. The issue was allowing foreign counsel to appear at the Tribunal to its status as a special tribunal. I don’t wish to split hairs with Mr. Rashid, but as we are talking about allegations of misrepresentation, then one should afford full disclosure.”
In my email my intent was to give Mr. Davis the pointers that he can research on and then republish his article with his finding, but Mr. Cadman took this as my attempt of non-disclosure. Unfortunately enough, even Mr. Cadman failed to elaborate the legal technicalities surrounding my claims in his Facebook response, which is similar in merit to many of his recent writings, and tried to paint the picture with a broader brush as if those twists of the relevant laws, rules and procedures will be incomprehensible to us, the commoners. My goal here today will be to analyze his comments and possibly ask him some questions through that process with the hopes of clarifying some misconceptions that are commonly found in many of the online articles I read.
While International Crimes Strategy Forum (ICSF) is a global coalition of independent activists committed to bringing the perpetrators of war crimes in Bangladesh to justice, Mr. Cadman criticized them for their ‘less than virtuous attack on any voice of opposition to the Bangladesh International Crimes Tribunal’. This statement has two problems. In regards to the “voice of opposition” to ICT, I believe every Bangladeshi, even every human being with a conscience for that matter, has a moral obligation to stand up against anyone that “opposes” ICT, which was formed because of the overwhelming national mandate and became a symbol of ending impunity for the alleged war criminals in Bangladesh. The only groups that are currently “opposing” the ICT are the accused mass murderers, their defence team and their political affiliates. But I’ll give Mr. Cadman the benefit of doubt and assume that by saying “voice of opposition” what he really meant is “voice of criticism” or “voice of concerns”. If that’s the case, then I’d like to ask him what constitutes a ‘less than virtuous attack’ on those criticisms. I’d like to see some examples of what he considers to be “less than virtuous” so that I can request ICSF to respond. In a time when Bangladesh government is failing to address the propaganda machine engaged by the defence team and their political affiliates, we are lucky to have a group doing the best that they can to address any misconception regarding the ICT. As I understand it, the work from a group of volunteers and activists that is working pro bono and has a proven track record in Bangladesh’s human rights sector, is more credible than the words from some hired lawyer, turned lobbyist, turned activist, such as Mr. Cadman, who has no previous track record in that sector of Bangladesh and, more importantly, making money for that cause.
It may be justified for him to speak and even criticize the due process of ICT, however, when he voices those opinions in a meeting, sharing a panel with fundamentalist political groups that are known to fuel religious extremism, sectarian violence and human rights abuses all over the world, I believe that goes beyond the call of duty for ensuring justice for his clients, specially when the leaflet for one such political event clearly shows an agenda of overthrowing the democratically elected government of Bangladesh by following the foot steps of the Arab Spring (see the picture). How “virtuous” is it for a lawyer who is currently working for a defence team, to participate in such a political campaign that is geared to overthrow a democratically elected government? It will be surprising if a lawyer of Mr. Cadman’s calibre denies any knowledge of such an agenda or the existence of any such leaflet for the meeting, the same way we were shocked to learn that he didn’t know the basic procedures of getting a proper visa for Bangladesh. Moreover, this type of participations in questionable political rallies put doubts about his sincerity to seek an end of impunity for war criminals in Bangladesh, which he always voiced to be his prime concern.
It is noteworthy and also ironic that a former Chief Prosecutor at Guantanamo Trials (an institution plagued with accusations of torture, coercion and other human rights and Geneva convention violations) was quoted in Mr. Cadman’s response as an unbiased defender of human rights and international standards. Even Mr. Cadman, with all his criticisms about ICT, could not claim that his clients were ever tortured or coerced by the hands of the investigation agencies or the prosecution team during the course of these trials.
Mr. Cadman claimed that I consider “it appropriate for a member of the defence to be silenced at a public event.” This interpretation of the portion of my email regarding him surprises me, because my primary concern about Mr. Davis’s article was that he omitted some tiny factual data that would have given his readers an in-depth understanding of where these criticisms are coming from. While Mr. Cadman was portrayed in that article as a critique of ICT, in my view, the readers had the right to know his current association with the defence team. That would have given them a better perspective whether these criticisms are coming from an independent onlooker or a biased faction. It is worrying to see one reaching such a quick conclusion about someone’s views while totally missing the primary objective of his point.
In response to the comments in my email regarding Mr. Cadman’s admittance to the ICT as a foreign counsel for the defence, Mr. Cadman claimed that I “omitted” the reference to the Rule 42 of ICT and then he later suggested that I purposefully ignored this to avoid “full disclosure”. I thank Mr. Cadman for bringing this to my attention, because I was indeed only aware of article 27(1)(a) of the Bar Council Order that bars foreign nationals from exercising the right to audience before any Bangladeshi Tribunal, but not the Rule 42 of ICT’s Rules of Procedure, so I looked up this Rule 42 and did some research online about it. This is what the rule says:
“The Tribunal may allow appearance of any foreign counsel for either party provided that the Bangladesh Bar Council permits such counsel to appear.”
After reading this, I certainly learned to appreciate Mr. Cadman’s sense of humour when he mentions that Rule 42 “provides for foreign counsel both for the prosecution and the defence” and ignores the second part of the same sentence of Rule 42 that requires Bar Council’s approval, while in the same breath he suggests “one should afford full disclosure”. So, let’s analyze the rule in its entirety for a change. The rule says foreign counsel may be admitted at the ICT by the Tribunal judges provided that the Bar Council permits it. What does that mean? Does it mean anyone from the Bar Council can make that call while violating the applicable rules and procedures? The Bar Council rule in this matter is clearly stated in the ‘Bangladesh Legal Practitioner and Bar Council Order -1972’ article 27(1)(a). It defines:
27. (1) Subject to provisions of this order and the rules made
thereunder, a person shall be qualified to be admitted as an advocate if he fulfils the following conditions, namely:-
(a) he is a citizen of Bangladesh;
It truly seems, these legal technicalities are not quiet as complicated as the lawyers suggest them to be. Sometimes, even ‘splitting hair’, as Mr. Cadman said it, is not necessary to understand these laws. It is quiet clear that the ICT Act leaves this matter of foreign counsel to the Bar Council (rule 42) and the Bar Council cannot violate their own rule in article 27(1)(a). It is noteworthy that Bangladesh is not unique in having such restrictions on foreign lawyers. Moreover, this bar council order has been in effect since 1972, so any claim (which the defense team or their political affiliates are trying to spread through their propaganda machine) that the current government has invented this only for the inconvenience of the defense team is totally absurd and baseless.
In his response Mr. Cadman also suggests that “the issue was allowing foreign counsel to appear at the Tribunal to its status as a special tribunal.” It is very interesting to note that Mr. Cadman was suggesting that the tribunal should have applied Rule 42 using its status as a ‘special’ Tribunal, while in the past, he challenged many of the tribunal’s special procedures and legal attributes comparing it to other provisions under which ordinary domestic courts operate. Quoting the tribunals ‘special’ status only when it is convenient may seem somewhat opportunistic. As a lay person, it is my understanding that the ICT Judges indeed have discretion over its own rules and procedures, but at the same time, they are under a bigger obligation not to supersede any law passed by the parliament. The current restriction on foreign counsel may very well be lifted in Bangladesh some day, but it is only logical if it applies to all courts in Bangladesh and not just for the ICT. I would like to ask Mr. Cadman how he justifies ICT to go to that length just for the convenience of certain foreign lawyers and their clients, who are accused of committing crimes more heinous than anything else ever prosecuted in the history of Bangladesh? I can only imagine how England, Mr. Cadman’s home country, or any other country for that matter, will entertain some foreign lawyers craving to practice law there, if that required changing their own time-tested process and procedures.
What makes him or his clients more deserving for this ‘special’ treatment, compared to the thousands that are currently being prosecuted in other local courts? The amount of money the accused is willing to spend or the gravity of the crimes they are accused of, surely does not justify any special privileges in their favour. Contrary to what the propaganda machine is spreading, these accused criminals are enjoying more civil liberties and human rights than anyone else ever prosecuted in Bangladesh.
Mr. Cadman often submits in various forums how he has been denied entry to Bangladesh as a defense counsel. What he, unfortunately, almost always fails to mention to his audience that he was actually allowed entry to Bangladesh for five consecutive times. It was only the sixth time he was denied entry, understandably for irregularity or non-compliance with the existing immigration rules of Bangladesh, which apparently had nothing to do with the ICT or being a defense counsel, although Mr Cadman claims otherwise without any real evidence in support of that claim.
Recently, Mr. Cadman made a comment that Bangladesh Government should decide whether ICT is a local tribunal or an international one. I didn’t realize that argument is up for debate. Even a layman (like me) in Bangladesh now knows, this is clearly a ‘local’ tribunal prosecuting ‘International Crimes’. So instead of reading the name as ‘International Crimes Tribunal’, it may help Mr. Cadman to read it as ‘Tribunal for International Crimes’. If that does not clear the confusion simply because of the fact that the name of the tribunal starts with the word ‘International’, I’d strongly recommend him to look up the legal definition of ‘International Crimes’, because I recently had to do it myself to clear up my own confusion.
The current ICT proceedings are not only important for the people of Bangladesh, the millions of victims of 1971 or the generations that followed, but it also strengthens the hope of bringing an end to the widespread culture of impunity commonly seen in many parts of the world. While any criticism of ICT should be welcomed with an open mind, any baseless accusations only for the purpose of delegitimizing these proceedings in the eyes of the international community must be addressed fiercely through objectivity and substance. Anyone attempting to politicize these proceedings with false or misleading information are putting their own professional and personal integrity in question, more importantly, they are committing a bigger crime against humanity by not being forthcoming in joining this brave effort taken by a poor third world county seeking justice for the whole human race.
Arman Rashid is a Toronto based writer, blogger and campaigner for justice for the crimes committed in 1971.