Geoffrey Robertson’s delusions exposed

I have had the privilege of walking the streets of Bangladesh with the freedom to speak my mother tongue Bengali, with the freedom to choose to wear or not to wear the hijab, with the freedom to celebrate the artistry of the likes of Rabindranath Tagore and Fakir Lalon, and most importantly, with the freedom to celebrate with love and pride an inherent part of my identity that is being Bengali.

I owe this freedom to my forefathers. I owe this freedom to my father who organised strikes, campaigned against genocide by Pakistan, sought international recognition for Bangladesh, and sang songs of freedom as a student in London; to my uncle who campaigned with Jubo-league and worked alongside the father of our nation Bangabandhu, to the plight of other members of my family whose war stories prelude the foundation of my own existence and that of the 3 million lost souls and millions more who fought for my generation's freedoms during our nation's bloody birth in 1971.

Lest we forget our past, the spillage of Avijit's blood and brains scattered on the pavement of one of the incipient places of our liberation war, stands as an abhorrently diabolical attack upon those sovereign principles we fought for 44 years ago. The current proliferation of Islamic fundamentalism is analogous to the attempted 'Islamisation of the masses,' and the 'elimination of the Hindus' promulgated by the military regime of Yahya Khan in 1969.

The bloodshed of Avijit, Rajib, Humayan Azad, Professor Yunus, Professor Shafiul, and the hundreds of victims of Islamists' protests in recent years can be traced back to the reinstatement of anti-liberation and religion-based political parties for mere personal political gains by General Ziaur Rahman in 1975, after being banned by Bangabandhu Sheikh Mujibur Rahman under Articles 12 and 38 of the Bangladesh Constitution, 1972. After the seditious assassination of Bangabandhu, several undemocratic polities have reversed the wheels of progress by dismantling the high ideals of nationalism, socialism, democracy, and secularism upon which the birth of Bangladesh was contingent.

Justice for the victims of our liberation war is not simply a matter of our past, but an opportunity our generation can seize, taking matters of our future into our own hands; to connect the dots of our future that can only be done looking retrospectively. The International Crimes Tribunal hence, stands as a symbol of our continued effort towards emancipation from oppressive anti-liberation forces, through brainwashed youths of today who are inciting nationalism as anti-Islamic; it is a validation of our country's bloody history that was made obscure by those who trivialise the crimes of the liberation war by calling it a 'civil war'; it is a beacon of hope for the Gurudasi Mondols who continue to roam the streets of Bangladesh in madness after watching their entire family being killed by the Razakars, although many would have us forget these injustices.

"How can you expect me to abandon [the International Crimes Tribunal Act, 1973]? Three million people were cold-bloodedly murdered. Two hundred thousand girls have been raped by the Pakistan army. Ten million people had to migrate to India and another million moved from place to place out of fear. The world should know what has happened," QC Geoffrey Robertson quotes Bangabandhu on page 9 of his 126 paged report on the International Crimes Tribunal. This article attempts to point out elements that QC Geoffrey Robertson has rather conveniently failed to disclose in his 126 page report.

An 'independent' opinion employed to criticise 'fairness' surely owes its audience fairness itself by contemplating both sides of the argument before drawing conclusions. The following paragraph suffices as a summary of Mr. Robertson's findings:

"That was the original objective, but regrettably the current Bangladeshi government has eschewed all offers of international assistance, including that of UN legal advisers, because this help was contingent upon abandoning the sentence of death (which no international court can impose) and on sticking to international fair trial standards.

"Despite the title of the law establishing this 'International Tribunal,' there is nothing 'International' about it: the judges and the prosecutors are government-appointed local lawyers while foreign counsel has been banned from appearing for the defence. And it is not, strictly speaking, a Bangladeshi court, because the 2010 amendments have removed constitutional protections available to all defendants in local courts.

"This Tribunal appears to have no rules about admissibility of evidence: many of the convictions have been based on hearsay, and in effect, on guilt by association. Nor does it provide the basic guarantees required by international human rights treaties – the rule about providing adequate time and facilities to prepare a defence, for example, has been consistently breached by allowing only three weeks for defence preparation after disclosure of prosecution evidence and by restricting access to counsel." (pg.12)

My thoughts seek to address the issues Mr. Robertson highlighted above.

I. International / UN Assistance

"After liberation… Father of the nation Bangabandhu Sheikh Mujibur Rahman asked at the very early stage in 1972 in his speeches that an international tribunal should be sent to Bangladesh to try 'war criminals' … Due to a void in the then world in absence of international machinery to prosecute the perpetrators of international crimes, Bangladesh in consultation with international jurists and experts (i.e., Ian Macdormatt, at that time the Chairperson of the International Commission of Jurists, Professor Jescheck of the MaxPlank Institute of International Criminal Law in Freibourg, Baden Baden from Germany and others) enacted a special law i.e., The International Crimes (Tribunals) Act 1973."

– M Amirul Islam as an amici curiae for the hearing of the appeal of Quader Molla before the Appellate Division of the Honourable Supreme Court of Bangladesh.

It was the Government of Bangladesh itself that approached the UN again in 2009 for technical assistance in setting up the International Crimes Tribunal, while its law commissioner initiated a consultation process seeking the opinion of the leading law faculties and law firms in Bangladesh for the review of the International Crimes Tribunal Act 1973.

It is maintained that the UN failed to respond and had subsequently abandoned the process due to Pakistan's strong lobbying at the UN with substantial behind-the-scenes support from campaigners in the US and France.

Not only has there been lobbying from Pakistan at the UN level, but lobbying tactics continue to be deployed at national levels and with human rights groups by defence lawyers in the US and the UK to basically do whatever they can to pressure a third world country to back off from a legitimate judicial process.

Hence, if the UN, whose lobbying tactics known to serve the geopolitical interests of hegemonies, can be swayed in favour of the interests of Pakistan over that of Bangladesh, then with what faith can the Government of Bangladesh trust it with the fate of justice for the millions of Bangladeshis?

Let us be absolutely clear that when the people of Bangladesh elected the Awami League government in 2008 on the mandate of trying the 1971 war criminals, the majority of our population did not vote for our intransigent judicial proceedings to succumb to the external influences at the behest of monopolised powerful lobbyists.

II. International or Domestic Court?

"The Act is of course a Municipal Legislation of Bangladesh with local jurisdiction only, notwithstanding its title. Tribunals created pursuant to the Act are also, despite their names, very much domestic Tribunals. They do not stand on the same footing with other overseas war crimes tribunals like the Nuremberg Tribunal, ICTR, ICTY et cetera, which were engendered by the United Nations with jurisdiction bestowed upon them by the same body and our Tribunals shall not apply International Law so far as the provisions of the Act cover the area, but decisions of UN created tribunals, can be, where appropriate and there is no conflict, taken in aid."

This is the settled conclusion drawn upon by Justice AHM Shamsuddin Choudhury after considering detailed discussions regarding the issue from seven of the most prominent lawyers in Bangladesh with laudable international exposure as amicus curiae. Detailed transcripts are available online. Thus, when Mr Robertson states that there is nothing international about the Tribunal, he is simply reiterating an established fact of the trials.

III. Fair Standards

Mr. Robertson's statement that the Tribunal is not a Bangladeshi court either, because the defendants cannot enjoy constitutional rights, are flawed by the provisions of Article 47, which makes fundamental rights guaranteed under Article 31, clause (1) and (3) of Article 35, and Article 44 inapplicable to any person to whom a law specified in clause (3) of Article 47 applies.

These provisions existed even before the procedural amendment made in 2010. As elaborated in the Supreme Court's decision (pg. 580-1):

The Appellant has in fact enjoyed "much greater procedural privileges than other persons accused of murder or rape enjoy in Bangladesh. He was allowed to be represented by the lawyers of his choice.

"Law and the Tribunal required the prosecution to prove the allegations beyond reasonable doubt, applied presumption of innocence, the trial was in the open, the Appellant was not only free to cross-examine prosecution witnesses but did so very skilfully and extensively for days, and was allowed to call defence witnesses.

"The Tribunal was composed of three Judges of the standing of High Court Judges (two of the judges of the Tribunal are High Court Division Judges, who are not servants of the government but hold constitutional office, cannot be removed even by the Parliament and are not accountable to anybody under our constitutional scheme), whereas a murder case or a rape case is tried by a single Sessions Judge.

"Unlike the persons convicted by the Nuremburg or Tokyo Tribunal, the appellant is fortified with an automatic right of appeal against conviction and sentence not only on point of law but on facts and evidence too, not to an appeal Chamber of the same tribunal but to the Apex Court of the land.

"Over and above the Tribunal adjudicated upon the matter by applying International Law provisions, although extending the wing so far was not necessary because the applicable law, as I hold, is our domestic law. By applying International Law provisions the Tribunal below put some additional burden on the prosecution to the benefit of the accused."

Prof. Rafiqul Islam of Macquaric University of Sydney, Australia is quoted in the decision of the Supreme Court (pg. 582):

"In international criminal trials, there is no common but a minimum international standard to be followed procedurally in procuring and presenting evidence. Every war crime trial is unique and different from the next … Minimum procedural standards and due process are important means of ensuring fair trials. But these procedural standards should not be stretched too high to make it undeliverable. The procedural means of the trial, however rigidly and immutably stressed, cannot frustrate but promote the very end of the peremptory obligation to end the impunity of perpetrators. Therefore, the claim of an international standard, which the Bangladesh ICT is failing as alleged by Economist, is a myth and misnomer. Such a fictional standard does not exist in reality."

Besides, on the issue of retrospectivity that Mr. Robertson repeatedly submits, it is to be noted that the Constitution (First Amendment) Act 1973 (Act No. 15 of 1973) was enacted on 15^th July, 1973 to insert clause (3) of Article 47 and Article 47A in order to enable the Parliament to pass the International Crimes (Tribunals) Act, 1973 on 20^th July, 1973. The amendment made it expressly retrospective. The established rule of retrospectivity is that when there is an express retrospective effect, having the sanction of the Constitution, there is no scope for the Court to interpret as to whether the law has a retrospective effect or not.

Finally, the allegations made by Toby Cadman of being banned from visiting his clients are rather laughable. Mr. Cadman has visited Bangladesh several times and also attended a hearing session of the ICT before being refused visa on arrival on August 8, 2014. His visa was vitiated the same way my visa to the UK would be if I deceived the immigration authorities of my purpose of entering the UK.

The law that a person with a visit visa cannot engage himself in any sort of work, inclusive of rendering legal advice, is the same in Bangladesh as in the UK. Anyone obtaining a visit visa concealing his true intention to perform any work is invariably vitiated under the British immigration rules as it is in our country. Just like a Bangladeshi Advocate cannot waltz into English Courts, one must be enrolled with the Bangladesh Bar Council to represent a client before the Courts in Bangladesh as Mr. Cadman had intended to do.

IV. Capital Punishment

On the contention that no international court can impose the death sentence, it is established that the death penalty is in fact not prohibited by the International Covenant on Civil and Political Rights (ICCPR), or any other virtually universal international treaty of international customary law.

At the international level, the most important treaty provision relating to the death penalty is Article 6 of the ICCPR which enshrines the inherent right to life. The said Article also provides that in countries which have not abolished the death penalty it may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime.

To hold back the death penalty for crimes that sought to cripple and terrorise an entire race would be to deny the legality of this penalty which is prescribed in statutes and reserved by the Constitutional benches of our Courts for the highest degrees of crimes such as rape, murder, and treason.

Currently, 58 nations actively practice imposition of the capital punishment, 98 countries have abolished it de jure for all crimes, 7 have abolished it for ordinary crimes only, and 35 have abolished it de facto, while a handful of countries have lifted their moratorium on the death penalty: Pakistan – after Taliban militants killed 141 people in an attack on a school in the north-western city of Peshawar, Gambia, Taiwan, Indonesia, Kuwait and Nigeria (Death Penalty information pack from the Penal Reform International, 2^nd ed., 2014).

V. Civil War or Genocide?

"The massive communal violence that occurred in East Pakistan in 1971 received worldwide attention at the time, but has been largely ignored since. Some scholars and other writers have denied that what took place in Bangladesh was genocide. Journalists' reports, expatriate testimony, refugee reports, and an investigation by the International Commission of Jurists in 1972 all indicate, however, that the Pakistani army did commit genocide in Bangladesh in 1971. The political and ideological circumstances that led to the secession of East Pakistan were conducive to religious and ethnic genocide." (Link)

– Donald Beachler, Associate Professor in the Department of Politics at Ithaca College, New York.

Much of the civil unrest today can be attributed to a divide between two camps within our society – those who want justice, and those who want to let bygones be bygones. As Tazreena Sajjad in "The problem with evil: Addressing 1971" eloquently puts it, "Compartmentalise, minimize, and move on – a convenient philosophy which greatly facilitates the focus on contemporary problems. The "peace now, justice later" echoes with the same refrain of "development now, democracy later" – setting up both a false dichotomy and assuming these are mutually exclusive."

I hope the analysis thus far demonstrates how Geoffrey Robertson's 'independent' report is anything but independent.

Unfortunately, Bangladesh being the world's 3^rd largest Muslim-populated nation has attracted much adverse interest from powerful Arab nations with imperial Western allies. Those accused of war crimes or with anti-liberation ideologies attract sympathies from these nations on the common ground of favouring 'Islamisation of the masses.'

Consequently, the Bangladesh war trials have fallen victim to those who intentionally disparage the egregious sufferings we had to face and contemptuously dismiss the credibility of our courts. They are working hard to suppress the truth about our past and to impose a future that has no correlation to our peace-loving past identities. For detailed insightful analysis of propagandas that surround the trials, please refer to Quader Molla's Supreme Court judgment.

I conclude by addressing the most popular propaganda of them all:

"There is nothing in the record to show that the prosecution was for political purpose. The mere fact that the perpetrator of an offence is a politician does not mean his trial is to be treated as one for political purpose.

"If allegations are proved beyond reasonable doubt against a person, it matters not that he is a politician, law does not and cannot provide impunity to politicians. It is to be borne in mind that crimes against humanity, whether committed by the Nazis of Germany, or the Japanese, or in Yugoslavia or Cambodia or Rwanda, had political connotations anyway." (pg. 753, Supreme Court judgment)

Nadia Choudhury is a barrister-at-law and a member of ICRF.