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Establishing a New Low in International Justice

Ghulam Azam

The Trial, Conviction and Death of Professor Ghulam Azam

A recent article appeared in the Bangladesh entitled “Trial of the War Crimes: ICT of Bangladesh Now a Global Model”. The article appeared in CSB News Bangladesh, an online news agency that publishes in Bengali. In the article it is claimed that the Bangladesh Tribunal has been considered a model for the whole world. It is curious that the article, considering its content, was not published in the English language media. It is perhaps because the article is utter nonsense from beginning to end and misrepresents and misquotes throughout.

The article in particular quotes US Ambassador-at-large for Global Criminal Justice, Stephen J. Rapp, as having said, “…The Government of the United States firmly supports this process. A positive side of this Tribunal is that it will remain a model for the whole world”. A cursory glance of the transcript released by the US State Department following his last visit to Bangladesh will demonstrate he said nothing of the kind. The Ambassador stated that the process needs to be without political interference, needs to serve the interests of the victims and the future of Bangladesh. The Ambassador noted that it could be a model to the world, but did not state at any stage that the Government of the United States firmly supports the trial process and stopped far short of saying it was a model of anything.

It is important to note at this juncture, that shortly after the Ambassador’s remarks, his former Deputy and current serving advisor to the Office of Global Justice, Professor Beth Van Schaack, clearly stated the Tribunal “pervert the values and goals of transitional justice, insult the victims who deserve a more legitimate accountability process, and threaten to leave a lasting stain on both the Bangladeshi legal system and the system of international justice writ large.” She went on to state that “Once hailed as a courageous and important exercise in historical justice, the [Tribunal] has become an object lesson for how international criminal law can be manipulated for political ends.”

The article that appeared CSB News Bangladesh lists the many theoretical rights of the accused and argues that the Bangladesh version of justice, if one can call it as such, provides far greater protection than the Nuremberg Tribunal or any of the international tribunals that have emerged since then. The article goes so far to suggest that both Amnesty International and Human Rights Watch have appreciated the work of the Tribunal, but remains against the death penalty.

The author of the CSB News article refers to war crimes trials in Rwanda, Former Yugoslavia, Cambodia, Sierra Leone, Bosnia and Herzegovina, Germany, Israel, United States of America, England, Venezuela, Argentina, Peru, Uruguay, Chile, Paraguay, Mexico, Canada, Libya, France, Ethiopia, Somalia and South Africa and asserts that none of the countries have held trials as independent as what is unfolding in Bangladesh. This, simply put, is delusional. Furthermore, to misrepresent the position of a United States Ambassador is highly irresponsible.

The parting shot in the article is Prime Minister Sheikh Hasina’s request to the international community to support the war crimes trials in Bangladesh.

If it is the Government of Bangladesh’s intent to establish a process that it can be proud of and a system that can stand up to scrutiny it needs to take a much more honest look at itself and how it is perceived internationally and decide whether the already tainted strive for justice is to continue, and risk it becoming a permanent stain on the development of what is still a relatively new country.

1971 saw the birth of a new country, of a new democracy. Its birth was bloody, of that there is no doubt. It is also beyond doubt that there are those who are responsible for the atrocities reported.

It is wholly appropriate that justice is sought for the crimes of the past through a judicial mechanism. It is only through a process accountability can the ghosts of the past be laid to rest and the open wounds be healed to enable a country to continue its development, and importantly, continue that development with social unity and cohesion. One cannot simply paper over such vast cracks. As with any post-conflict situation there needs to be a detailed and well thought out plan that involves all segments of civil society and government.

Justice and accountability is an important factor within this development, however, it must be motivated by just that, justice; revenge is not accountability, politically motivated actions are not accountability, and it is sad to see what began as an important tool, has descended to yet another political tool by which one party can enact its revenge on another.

Professor Ghulam Azam is the fourth person to die post conviction, following a hopelessly flawed trial before the Tribunal, which showed absolutely no respect for his fundamental right to a fair trial. This is not a question of guilt or innocence. This is a question of procedural fairness and due process.

This lack of respect continued following conviction, having been denied adequate medical attention when it was clear from the outset that he was in poor health. There will need to be a thorough inquiry into the circumstances surrounding his death to ascertain whether the authorities are guilty of wilful neglect. It is quite clear that the withholding of proper medical care constitutes inhuman and degrading treatment and punishment within the meaning of Article 7 of the International Covenant on Civil and Political Rights.

The indignity of being detained in such circumstances following a trial, which breached all domestic and internationally recognised standards, cannot be underestimated.

As a member of the defence team and his international legal counsel for more than three years I can speak with a certain amount of confidence concerning the flaws in the process – flaws that are evident through all of the trials. However, there are special features in the Ghulam Azam case that warrant attention.

Professor Ghulam Azam was charged with having effective control over the entire Pakistan military, a ridiculous and far-fetched assertion. He was charged, and convicted, and bearing responsibility for all crimes that occurred during 1971. Once again, an utterly ridiculous assertion. In order to challenge such ridiculous and wide ranging allegations the defence sought to call two expert witnesses. Professor William Schabas, an expert in international law, was to be called to speak about the nature of the conflict and whether it was international or internal in nature and whether Pakistan was an occupying power.

Professor Schabas is one of the world’s leading experts on international law and has recently been appointed to chair the UN Commission of Inquiry into the recent attacks on Gaza. The second expert, General Sir Jack Deverell KCB OBE, former Commander-in-Chief of the Allied Forces Northern Europe, was to speak of the civilian and military command structures with a view to identifying who bore responsibility in the Pakistan Armed Forces and its civilian command. Both witnesses are leading experts in their respective fields and both were refused the opportunity to give evidence at trial.

In terms of the case against Professor Azam it was based principally on rumour and unsubstantiated hearsay. One of the critical flaws in the trial was that the Prosecutor and the Tribunal failed to distinguish between crimes and modes of liability; two distinct legal concepts. The Tribunal’s judgment, and indeed, the prosecution of the case, proceeded on the deeply flawed basis whereby modes of liability were apparently confused and conflated with substantive crimes. This error in law was so severe as to invalidate all its other findings in relation to the charges.

For example, planning, incitement, conspiracy and complicity are not crimes in themselves, nor are they internationally recognised as such. They are modes of liability which describe and classify different modalities of participation. They do not and cannot change or replace the essential elements of crimes. This led to a lack of specificity of all the charges against Professor Azam and the defense was thereby required to contest charges that were vague and confused that the resulting trial was fundamentally flawed from the moment of charging.

Two of the key witnesses who gave evidence against Professor Azam face serious allegations of inappropriate conduct, as is demonstrated through Skypegate. Both witnesses were unable to give any direct evidence nor were they capable of appearing as expert witnesses. Instead their evidence focused on principally on rumor and their own views of the conflict. Muntasir Mamun gave evidence on the basis of the books he had written on the war of liberation. After giving evidence the witness placed a number of advertisements in the local media calling for the conviction and sentence of Professor Azam. The second witness, Sultana Kamal, a human rights campaigner, gave evidence that Professor Azam was liable for the conduct of the collaborators. However, Sultana Kamal’s evidence was tainted by allegations of that her evidence had been prepared by Ahmed Ziauddin, the close associate of the Chairman of the Tribunal who was later shamed into resigning due to his own misconduct.

It was further regrettable that the trial proceeded without a sufficient understanding of many of the key legal concepts of genocide, war crimes and crimes against humanity. It was equally an error of law that the Tribunal failed to apply the law as it stood in 1971, a fundamental principle of legality, when considering the definitions of crimes. For example, both war crimes and crimes against humanity required the existence of an international armed conflict in 1971. It was argued that the conflict could not be considered international in nature until at least 3 December 1971 when India entered the conflict. These were all points that the Tribunal failed to consider.

The Appellate Division of the Supreme Court announced just days before Professor Azam’s death that his appeal would be heard on 2 December 2014. On his behalf, the defence intended to argue that the errors of law were so severe as to invalidate all the Tribunal’s findings in relation to the charges and that the Supreme Court should set aside the convictions with respect to these charges and enter verdicts of not guilty.

Professor Azam has now been deprived of the opportunity to challenge his conviction and sentence before the Supreme Court.

The Government of Bangladesh and therefore the Judiciary have failed to observe even the most basic standards during the trial, and this malign influence cannot be allowed to permeate Professor Azam’s death.

The application of the rule of the law is a process devoid of political control. Its absolute adherence is what makes a country a democracy. However the current Awami League Government is in danger of corrupting this process and making it a tool of political retribution. It is hoped that where they failed in life, they will not allow this to continue in death.

The trial process prevented Professor Azam from challenging the flawed verdict of the tribunal, it prevented him from calling witnesses in his defence, it prevented him from challenging the credibility of those that sought to give evidence against him, thus showing to Bangladesh and the world at large, that the Tribunal is not about seeking justice for those that perished during 1971, it is simply a tool of oppression, of revenge, and a tool to ensure that the Awami League’s grasp on power is strengthened. It should not be forgotten that this grasp on power is being ensured at the costs of the democratic rights of the citizens of Bangladesh, it is at the cost of justice, and it is at the cost of those genuinely seeking accountability and closure following those tragic events that saw the birth of a nation.

The one consistent in all of this is that the trials have breached all fundamental principles of due process. An extensive appeal brief was submitted appealed to the Appellate Division of the Supreme Court of Bangladesh urging the Court to intervene and reverse his conviction of all counts. The Tribunal’s errors in law were so fundamental so as to invalidate the judgment, and its findings are so gravely unreasonable that the judgment should have been overturned and his convictions be set aside. Steps must now be taken so as to ensure that the conviction is reversed posthumously.

It was repeatedly argued that a significant number of international fair trial standards including but not limited to the presumption of innocence; clarity and specificity of charges; the right to appoint counsel of one's own choosing; sufficient time to prepare a defense; the right to attendance of witnesses; the right to be tried without undue delay by an independent, impartial tribunal; and the right to review by a higher tribunal have been breached during the course of his trial. As a result, Professor Azam was severely prejudiced and denied a fair trial.

Further significant criticism has been levelled at the practice of the Tribunal by international bodies including the Bar Human Rights Committee of England and Wales, Human Rights Watch (HRW), the United Nations Working Group on Arbitrary Detention, Amnesty International as well as the UK House of Lords and US Ambassador for Global Justice, Stephen Rapp, particularly following the exposure ‘Skypegate’ in the The Economist on 23 March 2013.

It is important to recall that HRW issued a report following Professor Azam’s conviction entitled “Bangladesh: Azam Conviction Based on Flawed Proceedings”. HRW noted in particular that judges improperly conducted an investigation on behalf of the prosecution; there was collusion between prosecutors and judges; changes in the composition of the panel of judges; and a lack of evidence to establish guilt beyond reasonable doubt. HRW were charged with contempt as a result of the publication of their findings.

The establishment of the Tribunal was naturally welcomed by the international community as a commitment to end a culture of impunity that has pervaded politics in the country since the cessation of hostilities. Bangladesh has endeavoured to reassure the international community that it is upholding the highest universally recognized standards of transparency, due process and fair trial. Bangladesh is a member of a number of important treaties including the International Covenant on Civil and Political Rights and the Rome Statute of the International Criminal Court.

However, from the start it has woefully failed to meet fundamental fair trial rights and due process standards provided for under these treaties. It is essential for the international community, and in particular the UN Human Rights Council, to make the issue of full compliance a priority. The international community has an obligation towards Bangladesh in terms of ensuring it has the capacity to establish a judicial process based on the rule of law and further that it abides by its treaty obligations.

It would not be an exaggeration to suggest that without further curtailment, the Government of Bangladesh is creating a very dangerous precedent for developing nations addressing impunity.

Bangladesh has an opportunity to be a positive example of all, rather than what at present are an exercise in revenge, and a blueprint for how now not to address such crimes.

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