Saturday, November 21, 2015

10 key concerns about the Salauddin Quader Chowdhury trial process

Wife of Chowdhury visits him in Jail after
appellate court review decision

Post script: Please note that Chowdhury was executed just after midnight on 22 November 2015.

This article set out some key points on why Salauddin Quader Chowdhury did not receive a fair trial, and why there are serious questions as to whether he actually committed the crimes for which he now faces execution.

However, before setting these points out, some background is important. 

First it is notable that unlike the Jamaat leaders who have been executed or face execution for similar crimes committed during 1971, Chowdhury comes from a well established elite family, which is extremely well connected, with many family members within the current governing party. So, for example, his second (but very close) cousin is Salman Rahman, the chairperson of one of the large corporate conglomerates in Bangladesh, and an adviser to Sheikh Hasina, the country's current prime minister. In addition Chowdhury is the cousin of Awami League MP, Saber Hossain Chowdhury, though apparently they are not on good terms. Moreover, Salauddin Quader Chowdhury's immediate family has been, and remains, acquainted with the prime minister Sheikh Hasina and her family. 

Second, Salauddin Quader Chowdhury, who had been elected six times as a member of parliament, is a controversial figure in Bangladesh politics. Putting to one side his alleged involvement in crimes during the 1971 war, there are many people who argue that he is a communal figure and that after 1975 committed other crimes for which he should be held to account. He is also known as a rather arrogant and over bearing person, characteristics which were evident at certain points during the trial where he harangued the Tribunal, and sacked his lawyers multiple times. Other than his family and friends, and no doubt a core of supporters, even within the Bangladesh Nationalist Party, where he was a member of the party's Standing Committee, there are likely to be few who will shed many tears.

Third, according to multiple well placed sources, at some point after 1975, he became a key agent in Bangladesh for Pakistan's intelligence agency, ISI (Inter Service Intelligence). During the last BNP/Jamaat government (2001-2006), where he held the position as adviser of parliamentary affairs to the then prime minister, it is also said that he was a key person blocking the Bangladesh government from facilitating Indian companies investing in Bangladesh, including a $3 billion Tata group project. As a result of his ISI role, Indian intelligence agencies are said to be  keen that Chowdhury be executed for the crimes which the Bangladesh courts say he committed during the country's independence war.

Fourthly, there are many people in Bangladesh who are absolutely convinced that Chowdhury committed the crimes for which he has been convicted and sentenced to death. I have heard people, whose opinion one should respect, state adamantly that they 'know' Chowdhury was in Chittagong during the 1971 war and 'know' people who saw him commit these crimes. Nonetheless, I have also heard the exact opposite from other equally respectable people.

So, returning to the main purpose of this article, whilst many people have different opinions about Chowdhury, it is at a criminal trial where one expects to be able to determine the truth about the allegations that he committed serious crimes during the 1971 war. Of course, this can only happen if certain basic standards of fairness exist - and in particular this requires that the defense be provided every opportunity to present its case, allowing witnesses to be summoned and cross-examined.

However there are real concerns about the trial. Although the prosecutors continue to argue that the trial  process was fair, there are the key reasons for arguing that Chowdhury did not get a fair trial and why his conviction are unsafe. It would be interesting for the two prosecutors to respond to the ten points below.

Chowdhury was charged with 20 separate offenses involving crimes against humanity and genocide which took place on multiple dates during the 1971 war. He was convicted of 9 offenses between April and July 1971, and sentenced to death for four offenses which took place on 13 and 17th April, within three weeks of the war.

1. Severe restriction on witnesses
The Tribunal did not impose any restriction on the number of witnesses that the prosecution could summon, and the prosecutors called 41 witnesses. However, the Tribunal only allowed the defense lawyers to summon 5 witnesses, and then it subsequently restricted the defense lawyers to summoning only 4 witnesses. There are two points here. First it is practically impossible for an accused to defende himself against 20 offenses with only 4 witnesses. Secondly, it is clearly totally imbalanced, with the prosecution allowed 41 witnesses, and the defense only 4.
(To read more detail about this, see 'Explaining the missing witnesses')

2. Restricted time provided to make defense case, compared to time provided to the prosecution
Although the Tribunal had allowed the defense 5 witness, the judges stopped the defense from presenting its fifth witness arguing that the lawyers were wasting time. However, whilst the prosecution presented its case over a period of 13 months, the defense were only allowed a total of 28 working days, at which point the Tribunal stopped the defense lawyers calling a final witness. Whilst some of the 13 months involved various defense applications, the Tribunal gave the prosecution over ten times the amount of time to present its case. (To read more about this, see link above: 'Explaining the misses witnesses')

3. Defence unable to summon 8 key alibi witnesses
As a result of the restriction in the witness numbers, the defense were unable to summon 8 witnesses (5 of whom were from Pakistan) - who the defense lawyers were intending to call to support its alibi that Chowdhury was not in Bangladesh at the time the offenses were committed. Even though during the trial, copies of affidavits from these witnesses were submitted to the Tribunal - and so the court would have been aware of the relevance of the evidence that these witnesses would have given had they testified in court - the court did not reconsider its earlier restriction of the number of witnesses.
(To read what these witnesses would have said, read this 'The missing 26 witnesses')

4. Defence unable to summon 20 Bangladeshi witnesses
In addition, the defense were also unable to summon Bangladeshi witnesses. For example, in relation to the four offenses for which Chowdhury was sentenced to death, there were 20 witnesses whom they would have summoned had they been able to do so - each of whom would have provided evidence that questioned key elements of the prosecution case for all four of these death sentence offenses. Again, at the time that the affidavits were submitted to the Tribunal, the court would have been aware of the relevance of the evidence that these witnesses would have given had they been allowed to testify in court, but the court did not reconsider its earlier restriction of the number of witnesses. (To read more about this, see link above: 'The missing 26 witnesses')

5. Tribunal judgement not refer to the affidavits submitted
In the judgement of the trial court, the Tribunal did not mention the 'affidavits'* at all.
See judgement

6. Without evidence, Appellate Division ruled that defense lawyer manufactured six affidavits
Unlike the Tribunal, the appellate division did consider the affidavits during the appeal. However, in its judgement the court ruled that a UK lawyer representing Chowdhury had 'beyond doubt ..... manufactured’ six affidavits ‘to save his client Salauddin Quader Chowdhury’ though it provided no evidence to support such a conclusion. The lawyer himself stated that he rejected the allegations 'in their entirety. They are unwarranted and unsupported by any credible facts.' He went onto say that, ‘If the Court was concerned as to veracity or legitimacy of the statements they could have easily called any of the witnesses to give live evidence where their statements could have been tested in an open adversarial process.’

7. Appellate Division rules affidavits inadmissible on technical grounds, though law specifically states that the Tribunal shall 'not be bound by technical rules of evidencd'
The appellate judgement also ruled that there were a number of technical problems with the affidavits - in how they were notarized, in that they did not have a seal of a Bangladeshi counsel etc - which meant that they could not be considered by the court. However, the court did not consider section 19(1) of the International Crimes (Tribunal) Act 1973 which states that "A Tribunal shall not be bound by technical rules of evidence." Moreover, if the appellate division had doubts about the technical aspects of the affidavits, the witnesses themselves could have been summoned to the court.

8. Appellate Division refuses to call 8 alibi witnesses on basis of incorrect rationale
As part of its subsequent application seeking a review of the appellate division's decision (which had upheld the trial court decision), the defense asked that 8 alibi witnesses, who had not be able to testify earlier, be summoned to the court, or that if the court would not agree to summon the witnesses, then it would admit as evidence the videos of the witnesses reading out their affidavits which it had submitted.  

The court however declined to do this, stating that 'if [Chowdhury] had at all underwent education in Punjab University, he could have produced authentic documents from the University concerned.'

However, the offenses for which he was sentenced to death took place in mid-April, at which time Chowdhury claims he was in Karachi, not at Punjab university in Lahore. He has only claimed to have been at Punjab University between May and August 197.  So the issue of the certificate is not relevant to these offenses.

However, most of the witnesses which the defense had wanted to summon were specifically relevant to Chowdhury's presence in Karachi during the days when he is said to have committed the four death penalty offenses. It is therefore not clear why the Appellate Division refused to call these witnesses on the basis that he had not been able to get a copy of his certificate - as the witnesses and the certificate relate to different parts of Chowdhury's alibi in 1971.

9. Non-admission of university certificate, without seeking clarification from university authorities.
The defense, finally, filed a duplicate copy of Punjab university certificate, with the court. In addition, the lawyers filed (a) a copy of the certificate attested by the chancellor of the university, its registrar, and the head of the department of political science; (b) an attested statement written by the registrar about the genuineness of the statement, along with an offers to provide any other assistance and (c) a video of the registrar reading out the statement.

The court however claimed that the certificate was 'forged' - though this would have required a conspiracy involving senior members of the university who had attested the certificate, and there was no evidence that they were involved in such a forgery. The appellate division did also raise some other issues about the certificates which they argued suggested that the certificate was a forgery - but the court came to this conclusion without seeking any clarification from the university authorities who would have been the right people to clarify their concerns.
To read more about this, click here: 'Was the certificate forged?'

10. The accused must prove his innocence
For the defense of alibi in relation to international crimes, the law as decided at the international tribunals is that there is no burden upon the defense to prove the alibi, but rather the prosecution must 'eliminate the reasonable possibility that the alibi is true'. This reflects the general criminal law principle that the prosecution must prove its case beyond reasonable doubt. However, the Tribunal judgement (para 247) stated that in relation to Chowdhury: 
'(1) Onus is entirely on the accused to prove the plea of alibi.
(2) The defence is to prove affirmatively that during the War of Liberation in 1971 the accused was continuously staying in West Pakistan since 29 March to 16 December,1971.
(3) The defence is to prove that the accused was not present in Bangladesh in 1971, at the time when the occurrences took place in Chittagong.
This principle was affirmed by the appellate division, when it stated 
"The plea of accused’s undergoing educational study in West Pakistan during the relevant times in 1971 being the sheet anchor of the case must be proved beyond doubt."
In effect this required Chowdhury to prove that he was innocent - which is against the very basic principles of criminal law. In fact not that he must prove that he was innocent, but do so 'beyond doubt' which is an even stricter test than the burden on the prosecution to prove its case, which is 'beyond reasonable doubt'

* The judgement does refer to 'documents', though not clear whether this also meant to include 'affidavits'. If so, the judgement stated that affidavits not properly admitted as evidence

Friday, November 20, 2015

Was the court right to rule that Chowdhury's university certificate was a forgery?

On Wednesday, November 18, the appellate division declined applications made by Salauddin Quader Chowdhury and Ali Hasan Mohammed Mujahid to review the court's earlier decision to uphold the sentence of death originally imposed by the International Crimes Tribunal.

There are no more legal avenues available for the two men, and unless they seek presidential clemency - which is highly unlikely - the timing of their execution now depends only upon the government and the jail authorities.

In recent days, former US Ambassador for Global Justice and human rights watch have both strongly criticized Bangladesh courts in the way that they have dealt with these two cases, in particular in dealing with Salauddin Quader Chowdhury.

This is the first of a number of articles about the trial and that appeal process that resulted finally in the courts decision yesterday.

This particular article considers the issue of the court's decision on Wednesday to rule that a certificate of graduation from the University of Punjab, filed by the defense, was a 'forgery'

1. How does the university certificate fit into the trial?

Chowdhury's key defense was that he was not in Chittagong during the whole of the 1971 war. He had sought to prove this in two ways.

First through eye witness testimony of those who took him to the airport at the end of March 1971,  people who met him in Karachi in the first few weeks of April 1971 including the person in whose house he stayed, and then witnesses who met him in Lahore during from the end of April to August 1971 again including the person in whose house he stayed.

Secondly through proof that he studied at Punjab university, that he took an exam at the university in August 1971 and obtained a degree certificate.

2. What happened to the defense witnesses?

As has been written previously in this blog, the Tribunal restricted the number of witnesses the defense could summon to five, and then to only four. So whilst the accused was able to summon three witnesses that supported his alibi testimony (the fourth witness was Chowdhury himself), he was not able to summon eight specific witnesses who could have provided further testimony in support. (To access the evidence of the three witnesses that did give evidence, read this article) It should be noted that Chowdhury was accused of 20 separate offenses, and the prosecution had called 41 witnesses.

3. And what about documentary evidence that he had been admitted at the university? 

In relation to the certificate, during the trial, the defense submitted (along with other affidavits) a letter dated 24 January 2011 from the  Department of Political Science of Punjab university, and signed by its chairperson, Dr Umbraid Javeed (download here). It stated:
"This is to certify that Salauddin Quader Chowdhury s/o AKM Fazlul Quader Chowdhury, class roll no 172 remained a student of (BA Hon) (Political Science) who secured 233/500 for the academic session 1970/71. He appeared in BA (Hons) Final Examination in August 1971."
Following the submission, the Tribunal passed an order which stated:
'It is an admitted fact that there is no provision to file additional documents on behalf of the defence during trial. Despite of this fact, for the ends of justice, we are inclined to give permission to the defence to submit additional documents and accordingly the defence is permitted to submit the additional documents as mentioned in the application and those documents be kept with the documents filed earlier by the defence.’
It is not entirely clear what the Tribunal meant by this - other than simply stating that it had received the documents. In its actual judgement the Tribunal dismissed the documentary evidence:
‘The defence in violation of the provision of section 9(5) of the Act submitted some documents before the Tribunal at the fag end of defence argument and intentionally refrained from proving those documents by recalling defence witnesses.’
4. And what happened at the appeal?

Following the appeal arguments, the judgment of the court did not explain its views about the letter from the chairperson of the university. It argued, however, that, "No explanation has been given why the accused could not bring any duplicate certificate from the University. If he could collect the affidavits, a testimonial from a teacher, what prevented him to collect a duplicate certificate from the University is not clear to us.". The full extract is below.
"It is interesting to note that though the accused could file a duplicate copy of his Higher Secondary Examination Certificate, he did file neither the original nor any duplicate copy of the certificate from the Punjab University. He claimed that he had successfully completed his graduation from the Punjub University and then had his higher education from Lincoln’s Inn. He filed a testimonial alleged to have been issued by Dr. Umbreen Javid of the department of political science, University of Punjab on 24th January, 2013. No explanation has been given why the accused could not bring any duplicate certificate from the University. If he could collect the affidavits, a testimonial from a teacher, what prevented him to collect a duplicate certificate from the University is not clear to us. The testimonial shows that he appeared BA honours final examination in August 1971 and that he scored 233/500 for the academic session 1970-71.

It is to be noted that if there are oral and documentary evidence on the same subject, the documentary evidence will prevail over the oral evidence. Accused Salauddin Qader Chowdhury’s basis of alibi plea is that he had studied at Punjab University, where he had completed his Bachelors of Arts (Honours).

Considering the above facts, we are of the view that the plea of accused’s undergoing educational study in West Pakistan during the relevant times in 1971 being the sheet anchor of the case must be proved beyond doubt. The accused has utterly failed to prove the same."
5. And did anything change at the review stage?

As part of its review application (to exactly the same court which had ruled in the appeal), the defense lawyers had filed an application requesting that 8 alibi witnesses, who had not been able to testify at the tribunal (see above), should be summoned to the court. This application was denied. In court the chief justice said, "You were able to get all these affidavits from all parts of the worlds and yet you were not able to get a copy of the university certificate." In its written order, given later, the court stated:
This Division rejected the same by order dated 2nd November, 2015, on the reasoning that if he had at all underwent education in Punjab University, he could have produced authentic documents from the University concerned.
 Following this decision the case was adjourned to 17 November.

6. And then what happened?

On 16 November, Chowdhury's family then filed an application to admit as additional evidence a number of documents relating to the certificate.
A. A duplicate copy of the certificate
(click here to download plain certificate taken from filed application
B. A duplicate copy of the certificate attested by Vice chancellor of the University, the registrar of the university, the chairperson of the department of political science of the university and the Deputy Director (Attestation) of the Higher Education Commission, Lahore.
(click here to download attested certificate taken from filed application
C. An attested letter from the registrar video of the registrar in which she says:
This is to certify that Mr Salauddin Quader Chowdhury s/o AKM Fazlul Quader Chowdhury was a regular student of the Department of Political Science of the Punjab, Lahore for the academic session 1970/71. His university examination roll number was 170 and his department of Political science enrollment was 172.
The university is willing to provide any other documents necessary to support this matter other than the verified document attacked by my office. For further information on this matter please feel free to contact us office of the undersigned.
          Click here to download copy of attested letter 
D. A video of the registrar in which he states the following:
I am Doctor Liaquat Ali. I am presently the registrar of th ePunjab University, Lahore and have issued a certificate which reads that:
To Whom It May Concern
This is to certify that Mr Saldduin Quader Chowdhury was a regular student of the Department of Political Science, University of Punjab, Lahore for the academic session 1970-71. His university examination rol number was 170 and his department of Political science enrollment number was 172. The university is willing to provide any other documents necessary to support this matter other than the verified document attacked by my office. For further information on this matter please feel free to contact us office of the undersigned.
I have also atteted and verified the copy of the degree issued to Mr Saluddin Quader Chowdhury, if anyone required to see the documentation regarding the admission, graduation, examination and issuance of the degree the record is available in my office. Thank you for the questions I ma happy to answer the questions.
In its application in court the defense lawyer pointed out that the university was willing to provide any assistance to the court to verify the documents, and also said the prosecutor can take any steps necessary also to verify the documents

7. What did the appellate division say in response to these document?

The appellate division rejected the application. In its written judgment the court found that the certificate was 'spurious' and 'forged'. The court gave the following reasons why it believed that it was forged:
A. The duplicate certificate was issued on 22 May 2012, but the defense did not lodge the certificate at the time of trial, at the time of appeal or at the beginning of the review application.
'We fail to understand why the petitioner did not produce this certificate before the tribunal or in the appellate Court in course of hearing of the appeal, although he had filed good number of documents which he procured in 2013. If he could produce those documents, there was no reason for him not to produce these duplicate certificates.'
B. The certificate states that the academic session was '1971' and not 1968-71
'In these certificates the academic session has been mentioned as ‘1971’. Learned Attorney General pointed out that if the petitioner had at all studied at Punjab University in honors course, his examination allegedly held in August 1971 his academic session ought to have been 1968 - 1971, inasmuch as, the honors course during that period was for three years.'
C. Chowdhury did not produce any paper showing that he had transferred his credit to Punjab university.
'Learned Counsel submitted, the petitioner studied at Dhaka University earlier and then he transferred his credit to Punjab University in 1971. In support of this claim, the petitioner did not produce any paper. Therefore, facts reveal that in May, the petitioner admitted to Punjab University in honors and obtained graduation in August in political science from the Punjab University which is totally an absurd story to believe.'
D. The certificate was not certified by a Bangladesh government representative.
'Further, the authenticity of the certificate has not been certified by an authorised officer of the High Commission Office of Bangladesh stationed in Pakistan.'
In court the chief justice also said that Pakistan is a hostile country and has criticized the war crimes tribunal, and so any documents coming from Pakistan can not be trusted.

8. How should one assess the court's decision?

The following points can be made about the decision by the court
A. If the document is forged, who forged it? The court's decision assume that there must be a conspiracy involved in the forgery including the Chancellor of the university, the registrar of the university, the head of the political sciences department, and the Deputy Director (Attestation) of the Higher Education Commission, Lahore. However, the court has no evidence to support any such conspiracy
B. The court emphasized in its claim that the certificate was forged that the certificate had been made available in 2012, but was not  produced before the court until 2015. This is a perfectly legitimate query. However, if the document was forged, it makes no sense why the forgers would put the date of May 2012. 
C. The defense lawyers did in fact provide in its written application an explanation as to why this certificate was not filed earlier. They say that they had filed a letter form the head of the political science department with the Tribunal, and the Tribunal did not at any point, including in its judgment, suggest that a copy of the certificate was required. 
D. The issue of whether or not the defense lawyers should have submitted the document earlier is a different one from whether the document is genuine or not - but the court conflates those two issues. The defense may have been negligent in failing to file this certificate earlier, but the certificate can still be genuine. However the court suggests that the document must be false because it was not submitted earlier.
E. As to why (i) the certificate has '1971' written on it and not '1968-71' and (ii) as to how it was possible for Chowdhury to attend the university in April and take the exam in August are questions for the university authority to answer, and not one you would expect the court to decide upon itself without hearing what the university authorities had to say on the matter. The Attorney General and the Appellate Division are not experts on such issues and one would imagine, particularly with the life of a man hanging in the balance, the court need to obtain an explanation from the university authorities before coming to these conclusions.
F. As to the lack of attestation by the Bangladesh High Commission in Bangladesh, there are two issues. First, it is clear that no Bangladesh High Commission would have attested such a document. Secondly, the International Crimes Tribunal Act 1973 makes clear that technical rules of evidence should be ignored - and the prosecution have taken great advantage of this in the past. So why not the defense?
9. So what does it all mean?

The key issue here, is that the appellate division put a great degree of emphasis on the absence of the university certificate in its appellate division judgment and also in its initial hearing of the review application, as to why the Chowdhury's alibi cannot believed. As a result, the defense lawyers then filed with the court a duplicate copy of the certificate. 

Of course the appellate division is perfectly within its rights to view this certificate with suspicion, but one would expect - particularly given that a persons life is on the line, and that the trial court and the appellate division court itself has declined to hear a series of alibi witnesses -  that before the court made any conclusive judgments about the certificate's authenticity it should make a proper examination of the certificate by calling, if necessary witnesses, from the university. 

It is also notable that the court has previously made claims that documents have been manufactured, without any actual evidence and when it has been strongly denied by those involved.

Thursday, November 19, 2015

Ambassador Rapp: Why Chowdhury should not be executed

Former US Ambassador at Large for Global Justice
For six years, until three months ago, the international crimes prosecutor Stephen Rapp was the US government's Ambassador at Large leading the Office of Global Criminal Justice in the U.S. State Department.

He visited Bangladesh a number of times in relation to the International Crimes Tribunal where he has given a number of press conferences and statements, which this blog has covered (see here for seven previous posts on Rapp).

He has now given a statement relating in particular to the trial of Salahuddin Quader Chowdhury, but also that of Ali Hasan Mohammed Mujahid, both of whose applications to the appellate division -  requesting that they reverse their previous decisions which had uphold the sentence of death - were turned down on Wednesday.

Over the last month there have been quite a number of statements issued on behalf of Chowdhury from UK and US politicians which this blog has not covered. This statement by Ambassador Rapp is different. It is an analytical and well argued critique of the trial against Chowdhury - and against the decision of Bangladesh's justice system to execute him. It does not cover all the issues, but it does cover the major one about lack of witnesses (see also here for more detailed analysis on witness restrictions)

This statement will not change anything. But those supporting the execution who still have an open mind should read it.  It is set out below, and the original statement can be downloaded here.

Statement of Former U.S. Ambassador-at-Large
Stephen Rapp
I served as Ambassador-at-Large leading the Office of Global Criminal Justice in the U.S. State Department for six years from September 2009 to August 2015. During my tenure, I was honored to be received in Bangladesh at the invitation of its government to provide advice regarding the process for holding trials of those alleged to be responsible for major atrocities committed during the 1971 Liberation War. I made five trips to Dhaka, in January 2011, May 2011, November 2011, May 2013, and August 2014, and also communicated with key participants between my visits. 
Throughout my engagement, my first interest has been to achieve justice for the victims and survivors through trials and appeals that would establish the undisputable truth and hold the major surviving perpetrators to account. For such a process to stand the test of time, I urged that the judicial proceedings of the International Crimes Tribunal respect the highest legal standards. 
It saddens me to say that I do not believe that was done in the cases of Salauddin Qader Chowdhury and Ahsan Mohammad Mujahid. Under the provisions of international law that Bangladesh has bound itself to uphold, the imposition of sentences of death in these cases is not justified, and I would urge the government to commute the death sentences in the interests of justice. 
I have looked most closely at the Chowdhury case, but note that the Mujahid case followed the similar procedures that did not give the defense the same opportunities to obtain and present evidence as the prosecution. It is particularly disturbing that Chowdhury was denied the right to call alibi witnesses, including a former U.S. Ambassador during the Clinton administration, to provide testimony that he was not present in Bangladesh at the time the alleged crimes were committed. 
Bangladesh is a party to the International Covenant on Civil and Political Rights (“ICCPR”). The ICCPR affords the accused the right “to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her.” The right of the accused to present witnesses – especially alibi witnesses – has also been recognized in other international crimes tribunals. In a case that I personally prosecuted at the International Criminal Tribunal for Rwanda, the Appeals Chamber held that “[T]he concept of a fair trial includes equal opportunity to present one’s case and the fundamental right that criminal proceedings should be adversarial in nature, with both prosecution and accused having the opportunity to have knowledge of and comment on the observations filed or evidence adduced by either party.” Prosecutor v. Nahimana, ICTR-99-52-A, at ¶ 181 (Nov. 28, 2007)
The European Court of Human Rights has likewise ruled that Russia’s “refusal to examine the defense [alibi] witnesses without any regard to the relevance of their statements led to a limitation of the defense rights incompatible with the guarantees of a fair trial enshrined in Article 6 [of the European Convention on Human Rights].” Popov v. Russia, no. 26853/04, at ¶ 188 (July 13, 2006)
Standards of procedural protections are even higher in death penalty cases. Article 6 of ICCPR establishes additional safeguards prior to the imposition of a death sentence. The Human Rights Committee has held that these standards should be met even during a state of emergency since “article 6 of the Covenant is non-derogable in its entirety, any trial leading to the imposition of the death penalty […] must conform to the provisions of the Covenant, including all the requirements of article 14” of the ICCPR. 
Mr. Chowdhury was convicted and sentenced to die by the Tribunal on October 1, 2013. This judgment was appealed to the Appellate Division of the Supreme Court of Bangladesh (“Appellate Division”), which affirmed the sentence and conviction of the Tribunal. 
The alleged conduct that led to Mr. Chowdhury’s conviction and sentence occurred on April 13, 1971, and April 17, 1971. Six alibi witnesses, however, who live outside of Bangladesh have been denied the opportunity to testify in person or through affidavit that Chowdhury was in Pakistan in April of 1971. Muhammed Osman Siddique, a former U.S. Ambassador, would have testified that he left Bangladesh for Pakistan on the same flight with Chowdhury on March 26, 1971. Siddique and the other witnesses will testify that Chowdhury lived in Karachi, Pakistan, until the second or third week of April when he moved to Lahore, Pakistan, to study at Punjab University. They will testify that Chowdhury did not return to Bangladesh until October of 1971 – months after the crimes occurred for which he was sentenced to death. 
Despite allowing the Prosecutor to call 41 witnesses, the Tribunal restricted Chowdhury’s defense to four witnesses. Prosecutor v. Chowdhury, ICT-BD -2 of 2011 (Order: June 13, 2013). The Tribunal also refused to consider affidavits from the excluded witnesses because they were allegedly submitted without sufficient notice to the Prosecutor – a fact disputed by Chowdhury. CT-BD 02 of 2011, at 150 (Opinion: Oct. 1, 2013).
The Appellate Division also rejected affidavits and live testimony from the witnesses. Appeal No. 122 of 2013, at 133-155. It first concluded that the proposed affidavits had been fraudulently “manufactured” by Chowdhury’s former attorney. Id. at 142. It next objected that the affidavits were not properly authenticated, do not contain statements verifying the truth of each affidavit, and were not stamped properly. Id. at 133-150. According to the defense team, Chowdhury attempted to notify the authorities, authenticate the statements, and stamp the affidavits, but the authorities refused. 
On November 2, 2015, the Supreme Court again denied Chowdhury’s petition to consider the testimony of his alibi witnesses. On November 18, 2015, the Supreme Court fully denied his review petition and also refused to admit Chowdhury’s university transcripts, which corroborate that he was in Pakistan. 
The Chowdhury defense has provided details of the expected testimony of the alibi witnesses. Of course, if their testimony were allowed, there would be an opportunity to the prosecution to cross-examine them, and for the judges to determine their credibility. But that process was not permitted, so what we have are summaries from the defense that the witnesses would have testified as follows. Muhammed Osman Siddique, who was a classmate of Chowdhury’s and later a US Ambassador to several Pacific nations, would have testified that Chowdhury left Bangladesh in March of 1971 on the same flight as him and that Chowdhury was not politically active during his time as a student in Dhaka, Bangladesh. Amber Haroon Saigol, publisher of the Dawn newspaper group, would have testified that Chowdhury stayed with her family for three weeks in Karachi, Pakistan, in March and April of 1971. Muneeb Arjmand Khan, a businessman, would have testified that Chowdhury left Bangladesh in March of 1971 for Karachi, Pakistan. Ishaq Khan Khakwani, a Pakistani politician, would have testified that Chowdhury arrived in Pakistan in March 1971, moved from Karachi to Lahore in April 1971, and lived with his family in Pakistan from April to October of 1971. Mohammedmian Soomro, formerly the Interim President of the Government of Pakistan, Care Taker Prime Minister, Governor and Chief Executive of the Sindh Province and Chairman of the Senate, would have testified that Chowdhury moved from Karachi to Lahore, Pakistan, to study at Punjab University in April of 1971. Reaz Ahmed Noon, a classmate of Chowdhury at Punjab University, would have testified that Chowdhury lived in Lahore during the summer of 1971 and traveled to London in October of 1971. 
The Chowdhury case is not the only case from the International Crimes Tribunal to feature procedural irregularities. The trial of Ahsan Mohammad Mujahid and others also saw similar deficiencies. Under these circumstances, I call upon the Government of Bangladesh to commute the sentences of both individuals, and immediately place a moratorium on the imposition of death sentences until there is full compliance with international law.

Sunday, November 15, 2015

What Amnesty International got right ... and wrong

On 27 October, Amnesty Internernational published a press release concerning the trials and appeal process of war crimes accused and now convicted Salahuddin Quader Chowdhury and Ali Ahsan Mohammad Mujahid whose executions, barring an unexpected change of mind from the appellate division that is due to hear their review applications on 17 November, are now imminent.

The press release received a lot of attention in Bangladesh - but unfortunately for Amnesty, not the kind of attention it sought.

The spokesperson for the Ganarjagaran Mancha, Imran Sarkar said that the statement:
"proves that Amnesty is not a human rights organisation anymore; they are against humanity, it is an organisation backing militants"
He also said:
“Human rights do not prick Amnesty International's conscience when the US bombs and kills people, including women and children, in Iraq, Afghanistan and Syria ... Now they have sided with the US’s ally Pakistan and demanding release of Razakars and those who are against the Liberation War. They have issued statement for this,”
In a letter to Amnesty, the Sector Commanders Forum stated that:
"Amnesty International has never recognised the right of the victims for justice, but always highlighted the rights of the accused in the dock”
At a press conference, the ICT prosecutor Tureen Afroze (see link above) said that :
“Amnesty International only considered war criminals as human beings and were oblivious about the victims.”
She is also quoted as saying that:
 "anyone demanding that freedom fighters be put on trial was speaking the language of war criminals."
The Prime Minister also commented on the statement suggesting that the organization had been corrupted:
"Surely, they [AI] have got a hefty amount of something for which they’re preparing such reports, or else, why they would do this."
She also referred to the part of Amnesty's statement which stated that“Serious crimes were also committed by the pro-independence forces, but no one has been investigated or brought to justice for them”. To this the prime minister said:
‘This is not acceptable to us that they will [speak] against our freedom fighters’
There have also been much very critical commentary about the Amnesty article in the media.

The standard response to all criticism of the tribunal.
These kind of criticisms are the pretty standard responses in Bangladesh from many (though not all) war-crimes tribunal campaigners* towards any person or organization writing or publishing something critical about the war crimes trials: generally they are labelled as pro-war criminal, pro-jamaat, and accused of taking money from war criminals.

It is also often suggested (though I am not sure that it has been suggested here) that there is some kind of international conspiracy afoot involving that person or organization.

None of these allegations are based on any evidence.

Rarely, of course, do those who make the accusations try and engage directly with the substance behind the criticisms. 

It does not seem to matter to many of these accusers how eminent or obviously independent are the organizations (or individuals) making the criticisms. Amnesty International has now fallen into the same category as other now demonized organizations -  The Economist magazine, The New York Times, and Human Rights Watch - which have all been subjected to similar accusations.

There does not seem to be any appreciation that one can support justice for those who were injured, raped and killed during the 1971 war, as well as, and at the same time, seeking trials that are fair - which is exactly the work of human rights organizations like Amnesty and Human Rights Watch, not just in Bangladesh but in many parts of the world.

And of course there is the issue of accuracy.

The comments made by Imran Sarkar suggesting that Amnesty does not care about human rights in the rest of the world (see his quotes above) are just as demonstrably inaccurate as many of the criticism made by the prosecutors against Human Rights Watch. 

So, for example, when prosecutors brought a contempt of court action against Human Rights Watch, they accused the organization of not writing any statements critical of Saudi Arabia, when just in the previous year, a look at the Amnesty website showed that they had published 18 press releases about human rights in Saudi Arabia. (And this was just one of the many inaccurate or misleading comments made about the organization by the prosecutors.)

And similarly, Imran Sarkar now seems to be accusing Amnesty of siding with the United States in committing human rights violations and of making no comments critical of the the country in relation to their military activities in 'Iraq, Afghanistan and Syria'. However a glance at the Amnesty website would show the inaccuracy of such a statement is. (see here and here, for example about Afghanistan just in the last couple of months: and Syria this month).

There is of course a basic hypocrisy in the position of those now attacking Amnesty International. When the Awami League was (and presumably one day will be) in opposition, and when those who are now critical of Amnesty are the subject of human rights violations by the government, they will of course turn to these same human rights organizations, and will congratulate them on issuing press releases critical of the government that is then in power.

People have every right to criticize organizations like Amnesty or individuals whom they disagree with concerning the trials. But it should be done so without making baseless allegations which often impute motives and question integrity.

Background: Amnesty International's Previous Criticisms of the Tribunal
Prior to the recently published press release, Amnesty International had issued 5 press releases and 2 urgent actions relating to the International Crimes Tribunal.

It did not issue its first press release on the subject until February 2013, three years after the establishment of the tribunal, and that related to concerns about the attacks against pro-Shahbag journalists and bloggers.

The remaining 6, all related to the sentencing of death of accused or their impending executions - and the focus of all of them was the imposition of the death penalty itself.

In all of them - different to what the Sector Commanders Forum suggests - Amnesty makes clear their support for the process of accountability and justice for the victims.

However 5 of the 6 releases did also contain some critical commentary about the tribunal. (The only one that did not was published immediately after the conviction and sentencing of Salauddin Quader Chowdhury).

The critical comments set out in the five are set out below. In summary, Amnesty has criticized certain actions as: 'incompatible with Bangladesh's international human rights obligations', 'in violation of international law',  'defying human rights laws', 'violated international fair trial standards', 'irregularities in the proceedings', 'allegations of unfair trials'  and 'intense politicization'.
  • 17 Sept 2013:  Death sentence without right of judicial appeal defies human rights law In relation to the death sentence imposed by the appellate division on Quader Molla: “We are very concerned about the Supreme Court’s ruling and the apparent relentless effort by the government to ensure that Mollah could be put to death." .... The death sentence was handed down by the highest court in the country, giving Mollah no chance to appeal. The imposition of the death sentence without the possibility of appeal is incompatible with Bangladesh’s obligations under international human rights law. “Imposing a death sentence without the right of judicial appeal defies human rights law."
  • 10 Dec 2013: 'Urgent action: Imminent execution - opposition party member': 'On 17 September 2013, the Appellate Division of the Supreme Court overturned Abdul Quader Mollah’s life sentence issued by the ICT and sentenced him to death, in violation of international law. ...The imposition of the death sentence without the possibility of appeal is incompatible with Bangladesh’s obligations under international human rights law. Multiple appeals against death sentences, as well as a final review of the highest court ruling on them, are available to prisoners sentenced to death by other courts in Bangladesh. This is the first known case of a prisoner sentenced to death directly by the highest court in Bangladesh, and the first known death sentence in Bangladesh with no right of appeal. 
  • 8 April 2014: Urgent Action: President must stop imminent execution: "Bangladeshi civil society, Amnesty International and other international bodies have welcomed the government’s move to end the longstanding impunity in Bangladesh for serious human rights violations in 1971. However, most observers including Amnesty International have expressed concern over how the proceedings before the ICT violated international fair trial standards. There were also irregularities in the proceedings, for instance, the court did not allow the defence to challenge the credibility of prosecution witnesses. 
  • 24 October 2014: Death penalty will not bring justice for crimes during independence war: In relation to the death penalty imposed against Motiur Rahman Nizami: 'The ICT has faced allegations of unfair trials from rights groups since it was established – complaints echoed by Nizami’s defence team during the trial.'
  • 3 Nov 2014: Fresh death sentences shows urgent need to end executions: Following the sentencing by the ICT of two men to death, it stated inter alia, that '“The outcome of ICT proceedings have become intensely politicized.'

What Amnesty got right and wrong
Amnesty did get things wrong in the recent press release - however were they not to have made these 'mistakes', their press release would in all likelihood have resulted in a statement that was more critical of the Tribunal - and perhaps an even greater level of attacks by those now criticizing Amnesty.

Here is what they got wrong.

1. 'Serious flaws': In the past Amnesty has spoken critically about the tribunal (see above), but in this press statement they say that  'serious flaws' occurred 'in their trial and appeal processes.' This language is arguably more serious than language used in the past and therefore  the press release should have backed up its position with some clear examples of the 'serious flaws' it consider existed. Whilst, the press release does set out one criticism for each of the cases, they are not enough to substantiate their accusation of 'serious flaws' (see below).

Assuming Amnesty does have enough substantive concerns about the trials to argue that there are 'serious flaws' - for example they may have wanted to bring up the issue of witnesses in the case of Chowdhury - then it does needs to set these out clearly so people understand that their conclusion has a clear and substantive basis

Of course, had it done so, this would not have made the press release any better appreciated in Bangladesh, and could well have made the organization subject to even greater criticism! But the press release would then have greater objective legitimacy.

2. 'Serious flaws in chowdhury's appeal': In relation to Chowdhury, the statement set out one concern ago this particular trial. Is says:
Salauddin Quader Chowdhury's defence team highlighted serious flaws in his appeal hearing. In one instance, the Supreme Court failed to dismiss the statement of a witness known as “PW-6”. The witness testified that a person who could corroborate his statement was dead when in fact the individual was very much alive and had even submitted a signed affidavit to the court to prove it.
There are some concerns about this paragraph.

First, this paragraph does not make sense unless more context is provided. What this paragraph is referring to is one particular offense against Chowdhury, where there was a single eye witness (PW6) alleging that Chowdhury committed this crime. According to the evidence of this particular witness in court after the crimes took place, he took shelter at the house of a person, whom he said he thought was now dead. This person in fact turned out to be alive, and this person subsequently gave an affidavit to the defense stating that the testimony given by the witness was untrue, and that he was in fact in India and never came to his house. This is significant as it raises questions about the credibility of the witness.

The significance of this statement, from Amnesty's perspective, should have been set out.

Secondly, whilst in relation to the particular offense in question, Amnesty's concern may be substantive, the press statement does not make clear that this criticism does not concern any of the four offenses for which Chowdhury received the death sentence - but for an offense where he received a sentence of imprisonment. So, even assuming that Amnesty's criticism was legitimate, it does not engage with any of the four cases for which he did receive the death sentence.

By failing to mention this, Amnesty's statement was rather misleading. And it allows one to ask the question: What about the other 8 offenses for which he was convicted, including the 4 for which he received the death penalty?

3. In relation to Mujahid's case, Amnesty states:
Ali Ahsan Mohammad Mojaheed’s appeal to the Supreme Court failed to dismiss the prosecution’s claim that he had instigated his subordinates to commit human rights abuses, when no subordinates had either been identified or testified on record.
If Amnesty considers this to be a flaw in the trial, it needs to explain why that is the case. Has it been shown necessary in other trials involving similar offenses against a leader of an alleged death squad for 'subordinates to be identified or testified on record'? And is there case law that supports their position? If this is Amnesty's position, then they need to set their position out much more clearly.

4. 'Immunity to pro-Independence forces': The press release states that 'Serious crimes were also committed by the pro-independence forces, but no one has been investigated or brought to justice for them.' 

Amnesty has never mentioned this point before in all its previous press releases, so it is certainly odd that they lobbed this line into this press releases without any context (mentioning for example, the issue of immunity provided) or any example of the alleged 'serious crimes that they they claim independent forces have been investigated.

There have been reports of massacres of Biharis at the beginning and end of the war (see this AFP story, for example), and of course since the second world war trials (that took place 70 years ago) all modern international tribunals do engage with crimes committed both sides of the conflict. If Amnesty wanted to make this point about liberation fighters not being prosecuted, since it had never raised this matter in all of its previous press releases, it should have provided material to substantiate its position - and it should have done this in a separate report or press release.

5. Other death sentences: In recent months there have a number of high profile death sentences imposed by the ordinary courts against individuals in Bangladesh, but Amnesty has not commented about these. Whilst, the International Crimes Tribunal is extremely high profile with international dimensions, and does involve international crimes and certainly justifies attention by Amnesty, it looks odd that Amnesty, as a international human rights organization, does not comment on other death sentences imposed in Bangladesh.


* I would certainly of course put myself into a category of those supporting trials against those alleged to have committed war crimes - but in Bangladesh the category of 'war-crimes tribunal campaigners'   has now come to mean those who support execution for all alleged war criminals, and who appear unconcerned about issues relating to the fairness of the trials.

Monday, October 12, 2015

British lawyer denies ‘manufacturing affidavits’ for war crimes trial


British lawyer denies Chief Justice ruling that he ‘manufactured affidavits’ for Salauddin  
David Bergman  
Toby Cadman, a British lawyer who represented a number of the men accused of crimes committed during the country’s independence war of Bangladesh, has denied that he ‘manufactured’ six affidavits ‘to save his client Salauddin Quader Chowdhury’, as stated in a judgment handed down by the appellate division.  
The statement was made by Chief Justice Surendra Kumar Sinha in the judgment published at the end of September which upheld the death sentence imposed on the senior BNP leader for the commission of four offences of crimes against humanity allegedly committed on 13 and 17 April 1971. 
The Chief Justice said that it was 'beyond doubt' that Cadman had manufactured these affidavits. The six affidavits were given by individuals living outside Bangladesh, including a former prime minister of Pakistan, a former United States ambassador, and the chairman of one of the country’s leading media group, who claim that Salauddin was not in Bangladesh at the time these crimes were committed.  
The affidavits include one from Muhammad Osman Siddique, which says that he was on the same flight as the accused when he flew to Karachi on 29 March 1971. In another statement, Karachi-based Muneeb Arjmand Khan stated that he ‘received’ Chowdhury from the airport on that day and took him to ‘Mr Yusuf Haroon’s residence, known as Seafield.’  
He also says that he was also amongst those who took Chowdhury to Karachi airport when he moved to Lahore ‘after about 3 weeks’ to go to Punjab university. Amber Haroon Siddiqui, the chairperson of Dawn newspapers, also provided an affidavit which states that on arrival in Karachi, Chowdhury lived at her family house, (known as ‘Seafield’) for ‘about three weeks. … We used to have discussions at the dinner table where [Salauddin] would join me, my sisters and my parents,’ it stated.  
Salahuddin’s defence lawyers submitted the six affidavits to the International Crimes Tribunal a few weeks after the court had restricted to a maximum of five the number of defence witnesses who could be called to testify in defence of 23 offences commited on ten different dates. 
No similar restriction had been imposed on the prosecution, who called a total of 41 witnesses. 
In its judgment, the International Crimes Tribunal ignored the contents of the affidavits stating that the defence had ‘intentionally refrained from proving those documents by recalling defence witnesses.’ 
In the appellate division judgment, Justice Sinha – as part of his consideration of the affidavits - referred to the arguments of the Attorney General, Mahbubey Alam and various articles published in the online media concerning Toby Cadman’s defence work. He then concluded that, ‘These opinions sufficiently prove beyond doubt that Mr. Toby Cadman has been propagating against the trials by the International Crimes Tribunals as a Overseas lawyer for the offenders of War Crimes and crimes against humanity and he has manufactured all these affidavits to save his client Salauddin Qader Chowdhury.’ 
Toby Cadman, however, forcefully rejected the allegation. ‘I reject the allegations in their entirety. They are unwarranted and unsupported by any credible facts. I was only involved in the taking of one deposition and assisted the defence team generally on defence strategy,’ he wrote in a statement to Bangladesh Politico.  
‘If the Court was concerned as to veracity or legitimacy of the statements they could have easily called any of the witnesses to give live evidence where their statements could have been tested in an open adversarial process,’ he said.  
Bangladesh Politico has also spoken to four of the six people who gave affidavits from outside the country, and they all deny that Toby Cadman had any involvement in the preparation of these affidavits.

Sunday, October 11, 2015

Salauddin Quader Chowdhury: Explaining the 'missing' 26 witnesses

This is part-2 of an article titled, 'Salauddin Quader: The missing 26 witnesses'. The first part is here and should be read first before this one.

Explaining the 'missing' 26 witnesses
This is the second part of an article on the 26 key defence witnesses who never had an opportunity to testify either before the International Crimes Tribunal, or the appellate division, in relation to the trial of Salauddin Quader Chowdhury.

The BNP leader now faces the death penalty for four offences committed on the 13th and the 17th April 1971.

The first part of the article summarized the evidence that these witnesses would have provided (according to affidavits that they provided the defence lawyers).

This part looks at how the International Crimes Tribunal only permitted Salauddin Quader Chowdhury’s lawyers to summon 5, and then finally only 4 witnesses, to defend their client in relation to 23 offences.

It was this restriction – which was ordered after the prosecution were allowed 41 witnesses - that meant that the defense could not present their case in court.

The article also considers subsequent submission to the court by the defence lawyer of affidavits given by these 26 witnesses who had been prevented from testifying in court

These affidavits, however, were never going to carry much, if any, weight. It is only witnesses testifying in court and then being subjected to cross examination, whose evidence really count. 
Therefore the article focuses on the court’s order restricting the witnesses, and how the appellate division dealt with this issue.

The article also considers the mistakes (or failures) of Salauddin’s defense lawyers; they did not make the Tribunal's witness restriction order a specific ground of appeal (though it was raised at the time of the hearings) and also did not exploit all the opportunities that they had to request both the trial and the appellate division to summon these witnesses.

Restricting the witnesses
The story starts on 20 May 2012, at the very start of the trial, with the prosecution in the middle of examining its first witness.

On that day, defence lawyers provided to the tribunal a list of 1153 names whom they hoped would later to testify as witnesses.

The trial then continued with the presentation of the 41 prosecution witnesses.

Thirteen months later, on 13 June 2013, the day the last prosecution witness was called, the Tribunal considered a prosecution application arguing for the cancellation of the whole defence witness list on the grounds that it did not provide the 'details' of the charges on which these witnesses would give evidence, as required by the rules of procedure.

In its order, given on the same day, the Tribunal made no reference to the lack of ‘details’, which the prosecution lawyers had referred to, but did state that ‘the number of defence witnesses ..appears to be an attempt to delay the trial of the case which is not permitted by law.’

The Tribunal then went onto say that it had powers to regulate the number of defence witnesses and that ‘considering the plea of defence case, the defence is permitted to examine 5 witnesses which will be sufficient to prove the defence plea.’ The tribunal also referred to the rules of procedure of the International Criminal Tribunal for former Yugoslavia to justify its restriction of witnesses.

A justified restriction?
The Tribunal was clearly right to say that the number of witnesses proposed by the defence team was ridiculously long. It was therefore perfectly reasonable for the Tribunal to decide to reduce this number.

However, in its order, the Tribunal provided no clear rationale as to why it thought that 5 witnesses ‘will be sufficient to prove the defence plea’ - when the accused was being prosecuted for 23 separate offences which allegedly took place on different dates.

International or domestic courts that restrict witness numbers generally do so on the basis of one or more of the following reasons: lack of relevance of the witnesses, their repetitiveness (repeating again and again what other witnesses have stated), or to ensure that the time given to the prosecution and the defence cases is proportionate.

So for example, though the ICTY, as stated by the Tribunal, has the power to restrict defence witness numbers, in practice it uses that power to ensure that the time given to the defence to present its witnesses is ‘reasonably proportional to the time given allocated to the prosecution.’ So for example, in the recent Karadic case, having allowed the prosecution to have 300 hours, it allowed the defence to have the same amount of time (though the defence had initially sought 600 hours.)

The Tribunal does not seem to have applied any one of these three principles in reducing the number of witnesses.

If ‘proportionality’ had been an issue in the court’s mind, it would have reduced the number of witnesses from 1153 to around 40 – the number which the prosecution had summoned – rather than to five.

And lack of ‘relevance’ or ‘repetitiveness’ of the purported defence witnesses could also not be the reason for the court’s restriction since the Tribunal had no knowledge about the kind of evidence that any of the proposed defence witnesses on the list were likely to provide. It had not asked the defence lawyers for any details of what their testimony would relate to.

So what might have been the factors that the Tribunal took into account? In stating that five witnesses were sufficient to prove ‘the defence plea’, as the court did, the tribunal may well have been referring to the ‘plea of alibi’ that it assumed the defence lawyers would make when they had their opportunity.

However, if that was so, how could five witnesses be sufficient for the defence to argue that Salauddin was not present at the places where all the offences took place?

In Chowdhury’s case there were at least ten separate dates on which the 23 alleged offences took place, so without knowing the kind of alibi evidence that the defence  was going to provide - it is difficult to see how the Tribunal could decide that 5 witnesses were going to be sufficient to be an alibi for all these dates and offences.

Moreover, even if, for the sake of arguments, five witnesses was considered sufficient for the presentation of the alibi defence, what if the defence also wanted to call witnesses that would provide evidence which sought to discredit the prosecution case and its witnesses?

In orders given in other cases (for example in the case of Abdul Quader Molla), Tribunal-2 had argued that since it was the prosecution’s obligation to prove its case beyond reasonable doubt, an accused person had no need to call witnesses to prove his or her innocence.

However, whilst it is true that accused persons do not need to prove their innocence, they do have a right, if they wish, to call witnesses that disproves the prosecution’s case by, for example, questioning the credibility of prosecution witnesses – which is in fact what 20 of the witnesses would have done in relation to the four charges for which Salauddin was subsequently sentenced to death. It is clearly relevant for any criminal court to hear that kind of evidence.

The review
Following the Tribunal’s decision to restrict the witnesses, the BNP leader’s lawyers sought a review of the order before the same Tribunal (since there is no right to appeal an order to any other court.)

In a detailed application, the defence argued that five witnesses was not sufficient to support their alibi defence and moreover that the tribunal had not asked them what would be the minimal number of witnesses they required to prove it.

The application also argued that the defence wanted to call witnesses so that it could disprove the credibility of the prosecution witnesses and that unless the accused was allowed to call more witnesses the lawyer could not put forward a proper defence. It argued that restricting the number of witnesses to five in comparison to the prosecution case was a ‘gross inconsistency’ and that five witnesses was an ‘arbitrarily’ chosen number with no rationale.

In its order given on 26 June, the Tribunal rejected the review application by stating that ‘We find no new ground to reconsider the matter and as such the prayer for increasing the number of D.W.s is rejected.’

The tribunal did not respond to any of the new points made by the defence in its application.

When Tureen Afroze, one of the prosecutors against Salauddin was asked to comment on the the Tribunal's decision to restrict the number of defence witnesses to five, she said that she did not know why the Tribunal had taken this decision but that ‘they must have reasons for it. …. It is the tribunal that decided on the number, and how they come to the number is not known to me.’
The sworn statements
The restriction of witness numbers has been common in many of these trials before the International Crimes Tribunal. In the case of Abdul Alim whilst the prosecution was allowed 35 witnesses, the defence was restricted to 3 witnesses to disprove 17 offenses; 4 witnesses were permitted in Motiur Rahman Nizami’s defence relating to 16 charges; 5 witnesses were permitted in the trial of Kamaruzzaman involving 7 offences; and 6 witnesses in the case of Abdul Quader Molla in defence of 6 offences.
However, unlike in all these other cases, after the Tribunal’s initial order restricting witnesses, the defence team collected sworn statements from witnesses they had wanted to summon, and submitted them to court.
On 21 July, after the third defence witness had given evidence, Chowdhuryís lawyers made an application seeking to adduce as evidence a total of 59 documents including 46 affidavits. These included the 26 that are relevant to this article

The Tribunal passed an order stating that, ‘It is an admitted fact that there is no provision to file additional documents on behalf of the defence during trial. Despite of this fact, for the ends of justice, we are inclined to give permission to the defence to submit additional documents and accordingly the defence is permitted to submit the additional documents as mentioned in the application and those documents be kept with the documents filed earlier by the defence.’

Under the International Crimes Tribunal Act 1973, ‘statements’ of witnesses can only be considered ‘evidence’ in limited circumstances which did not exist here, so, although the wording of the order is ambiguous, one can assume that the court was not treating them ‘as evidence’.

However, had the Tribunal read these statements the judges could well have realized that there were highly relevant to the question of guilt or innocence of the tribunal.

At this point in the trial, the defence case will still open (in that it was presenting its witnesses), and so the tribunal could have re-evaluated its earlier two decisions to restrict the defence to only allow 5 witnesses and allowed all or some of the people who had given affidavits to be called as witnesses.

Section 11(1)(a) specifically states that the tribunal has the power ‘to summon witnesses to the trial and to require their attendance and testimony and to put questions to them.’

However, this did not happen.

The defence though were also at fault. The defense should have specifically re-applied for a revision of the witness restriction order. The court may well have rejected such an application but at least the rejection would have been recorded, and no stone would have been left unturned.

In any case, three days later the court forcibly closed the defence case without the accused being able to bring to court even its fifth witness.

Closing the Defence
On 21 July, when the defence submitted the affidavits, the defence had already called three witnesses.

DW1 had given evidence for 9 days from between 17 June and 4 July. DW2 testified on 8 and 9 July and DW3 on 16 and 21 July. DW4 was supposed to give evidence on 23 July, but did not do so until 24 July.

As the defence lawyers did not have their fifth witness ready that day, the court, which had already warned the lawyers that it would not allow any more adjournments, closed the defence case.

However, the prosecution had taken a very similar amount of time as the defense to hear its first four witnesses, and during the period when the prosecution presented its cases there had been a similar number of days in which the court did not take testimony.

The prosecution’s first four witnesses were heard during the course of 28 working days (between 14 May and 20 June 2012), during which there were 13 days in which no evidence was taken. And in the defence case, the first four witnesses were also heard in 28 working days (between 17 June and 24 July 2013) with 12 days in which no evidence was taken. 
It is therefore not clear why the Tribunal considered it so necessary to close the defence case – as a similar amount of time was required by the prosecution to bring its witnesses.

It is also notable that whilst 13 months was required for the prosecution to present its 41 witnesses, the defence were only allowed a total of 28 days, less than a month to present its case. And during those 13 months, there were many gaps in which witnesses did not testify. For example in July 2012, there were only seven days when a prosecution witness testified. And in the whole of October 2012, there were only two dates where a witness gave evidence.
The Judgment and after
On 1 October, the Tribunal gave its judgment. In its section on the alibi evidence,
the judgment stated that, ‘The defence in violation of the provision of section 9(5) of the Act submitted some documents before the Tribunal at the fag end of defence argument and intentionally refrained from proving those documents by recalling defence witnesses.’ The court did not refer to its order given on 24 June in which it accepted the documents.

The appellate division’s judgment published on 31 September, deals at some length with the issue of the admissibility of these statements and held that no reliance should be given to them.

It gave many reasons for its decision and it is unclear which of these reasons it considered decisive. In relation to the 6 foreign affidavits, the judgment stated that: ‘beyond doubt’ Toby Cadman, a British based defence lawyer for the accused has ‘manufactured all these affidavits to save his client Salauddin Qader Chowdhury’ (something which he vehemently denies); that the affidavits coming from abroad were not properly authenticated and one of them was not affirmed before a notary public; that they ‘do not inspire any confidence’; and that ‘there is no evidence to show that the person before whom the notarial acts were done, were Notary Publics and that the States in which the notarial acts were done authorized him by law to do the notarial acts.’

In relation to the statements obtained in Bangladesh, the judgment stated ‘the defence did not explain why it did not affirm those affidavits before the Registrar of the tribunal or that why it did not seek tribunal’s permission; that the affidavits were ‘prepared in the same sitting, by the same persons and created with a view to confusing the prosecution case’; and that taking into account the contents and the form of the statements, ‘there cannot be any doubt that these are all collusive affidavits.’

Putting to one side whether the judgment was right on these particular points, the appellate division did not consider in its judgement that the only reason why these statements had to be given at all, was because the Tribunal had only allowed the defence to call five witnesses.

The appellate division judgment did not consider the legitimacy of that decision, and whether the defence should have been given every opportunity to call these witnesses.

The appellate division also did not consider, as far as one can tell from the judgment, whether these witnesses should be summoned before it. The appeal court has the power to look at the evidence in its totality, and of course the constitution requires it to do ‘complete justice’ which specifically includes passing ‘orders for the purpose of securing the attendance of any person.

In nothing this, however, it should be stated that the defence lawyers did not make any application seeking the attendance of these witnesses - something it clearly should have done.

What now?
All legal avenues are just about closed – though there does remains the option of the defence lawyers seeking a review of the appellate division order. However, this is undertaken by the same judges who gave the appellate division judgment, can only be based on very limited grounds (that there is an 'error apparent on the face of the record'), and are rarely successful.

However, the situation that we have now is that Salauddin Quader Chowdhury is due to be put to death for extremely serious crimes though he has not been permitted to present anywhere near a full defence case i.

Whilst the prosecution called 41 witnesses – and never had any restriction imposed upon them – the defence were only allowed to call 5 witnesses, which was subsequently restricted to 4.

After the court imposed this restriction, the defence then submitted to the Tribunal the affidavits of 26 witnesses, whom the defence had wanted to testify in court - and whose testimony if true would have exonerated him from the 4 charges for which he was subsequently sentenced to death.

Both the tribunal and the appellate division considered that these statements were invalid. However, neither court apparently thought that these witnesses, which raise serious questions about the integrity of the prosecution case, should be given an opportunity to attend court and provide their testimony.

Process is important. It is a basic principle of due process, that a person should not be convicted for a serious offense - yet alone executed - without being able to present their defense case as fully as possible. Therefore, if the execution of Salauddin Quader Chowdhury is not seen by many as an irreversible miscarriage of justice, a way must be found for these 26 witnesses to be given an opportunity to testify in court, be subject to cross examination and their evidence assessed to determine whether they raise any doubt as to the guilt of the accused.

These witnesses may well be lying. However, the only way to assess whether they are telling the truth or not is for them to testify in a court of law.

Saturday, October 10, 2015

Salauddin Quader Chowdhury: The "missing" 26 witnesses

On 30 September 2015, the appellate division made public a copy of its judgment which upheld the death penalty against Salauddin Quader Chowdhury, a former Bangladesh Nationalist Party leader, for the commission of four offenses  committed during the country's 1971 war of independence.

At present there is a hiatus. There are no legal proceedings pending, providing an opportunity to comment on the current situation.

The defense lawyers have a right to lodge an application seeking a review of the appellate division judgement within 15 days of the judgement which was published on 30 September. At the time of writing, they have not done so.

Commentary on any legal proceeding in Bangladesh - and in particular those involving the International Crimes Tribunal - is difficult, as Bangladesh courts take a very expansive view of what is contempt of court through 'scandalization' (unlike for example Indian courts). It has become very difficult for writers in Bangladesh to assess when commentary will be viewed as 'fair criticism', exempt from contempt of court charges, and when it will be viewed as 'scandalization'. As a result, few in Bangladesh dare to write, fearing the consequences.

In relation to the International Crimes Tribunal, about which there is understandably much emotion, this has become even more precarious. Even if one escapes an application for contempt, there is a category of tribunal supporters who refuse to accept that writing about fair trial standards is at all justified. For them, the process should not be subject to any critical commentary, and they will try to label any writer who raises points they do not like as 'pro-jamaat', 'pro-war criminal' and the like - failing to engage at all with the substance of what is being stated. Social ostracism, from otherwise progressive people whose views on most other things one shares, is therefore another risk that people face.

Nonetheless, there are moments when the risk is worth taking - and this is no more so than when someone is on the cusp of being put to death.

This is part-1 of an article  - about which great care has been taken to ensure that it stays the right side of the line of 'fair criticism' - setting out concerns that 26 key defense witnesses were never given an opportunity to testify on behalf of Salauddin Quader Chowdhury. To read part 2, click here

The missing 26 witnesses 
When the Bangladesh government decided to hold to account those alleged to have committed international crimes during the country’s independence war in 1971, they did not just pick the suspects up and shoot them.  
Far from it. Following the demands of campaigners who for many years had been demanding justice for Bangladeshis who had collaborated with the Pakistan military, in 2010 the newly elected Awami League government established a special tribunal.  
Allegations were investigated by a dedicated group of police, and prosecutors laid charges against those where they thought there was sufficient evidence. Following a trial, a three-judge tribunal decided on their guilt, following which there was a right for the accused to appeal.  
Therefore, for those seeking justice, ‘process’ – that is to say, the manner in which the guilt of the accused was to be decided  - was a crucial element of their demand. Campaigners did not just want these men – many of whom they hated, despised and considered guilty of heinous crimes – to be just ‘picked up and shot’. 
They wanted them to be proved guilty in a court of law before receiving as they later put it, ‘the highest penalty available’. And they wanted this process to be ‘fair’  
A week ago, the appellate division published its full judgment upholding the death penalty against the Bangladesh Nationalist Party leader, Salauddin Quader Chowdhury for four offences involving crimes against humanity during the 1971 war.  
Assuming he is put to death – and there does remains the option of the defence submitting a review application in the coming week – he will be the third person to suffer the death penalty following conviction at the International Crimes Tribunal.  
However, how fair was the process that has resulted in this conclusion?  
A fair process requires many things, but one crucial element is allowing an accused person a proper opportunity to present his or her case.  
But, in relation to the four offences for which Salauddin has been sentenced to death, there were 26 crucial defence witnesses that were never given an opportunity to testify in court. 
It is the matter of these witnesses, from whom no court has heard, which is the subject of these articles. 
The six foreign witnesses 
Who are these witnesses, and why are they so important?  
Six of the witnesses live outside Bangladesh and include a former US ambassador, a former prime minister, a former member of the Pakistan legislative assembly and the current chairperson of the Dawn media group in Pakistan. 
Their evidence supports Salauddin’s alibi defence, which is that on 29 March 1971 he flew out of Dhaka to Karachi where he stayed for three weeks. After that, he travelled on to Lahore where he studied, until August of that year, for a degree at Punjab University. 
We know what they would have stated in court as the defence obtained sworn statements from them.  
These witnesses include Muhammad Osman Siddique, the former United States ambassador, who stated that he was on the same flight as Salauddin, who was an old school friend of his, when he flew to Karachi on 29 March.  
Karachi-based Muneeb Arjmand Khan, also a friend of the accused since school days, stated that on 29 March he ‘received’ Salauddin from Karachi airport and took him to ‘Mr Yusuf Haroon’s residence, known as Seafield.’ He also said that he was amongst those who took the BNP leader to Karachi airport when after 3 weeks he moved to Lahore so that he could go to Punjab university.  
Amber Haroon Siddiqui, now the chairperson of Dawn media, confirmed that when Salauddin arrived in Karachi, he lived at her family house, (known as ‘Seafield’) for about three weeks. She said, ‘We used to have discussions at the dinner table where [Salauddin Quader Chowdhury] would join me, my sisters and my parents.’  
And then there is Ishaq Khan Khakwani, a former member of the National Assembly of Pakistan, who said that ‘[Salauddin] arrived at Karachi a few days after … 26th March 1971 …. Salauddin was picked up from the airport by our mutual friend Muneeb Khan and I spoke to both of them once they reached Mr Yusuf Haroon’s [father or Amber] residence called Seafield House.’ He then says that when the BNP leader moved to Lahore, and he was admitted in the Punjab university the accused stayed within ‘in our family house … where he stayed with me throughout till we left for London in October 1971.’ He mentions the names of five people who would congregate with the accused ‘almost daily’ in that period, and stated that ‘Shamin Hasnain, who is now a justice of the High Court in Bangladeshi’ would sometimes join them. 
Along with two other witnesses their evidence is that Salauddin was not present in Bangladesh during the war – and specifically he was not present there on 13 and 17 April when he is said to have committed the four offences for which he has been sentenced to death.  
The 20 Bangladesh witnesses 
The other 20 witnesses live in Bangladesh and their evidence – as seen by the affidavits which they drafted - dispute key elements of the prosecution case that claim that Salauddin committed the four offences.  
The first offence on 13 April 1971 involved the murder of Nutun Chowdhury at the Kundeshwari compound in Gohira village. In this case, the Tribunal primarily relied on two ‘eye-witnesses’ - that of Gouranga Singha, who was part of the victim’s extended family and Gopal Chandra, the principal of Kundeshwari Girlís college.  
In its judgment the Tribunal quoted Gopal as stating that he saw the accused shoot Nutun Chandra Singha using ‘his pistol or revolver as he had instruction from his father to kill Nutun Chandra and thereafter, accused Salauddin Quader Chowdhury left the crime site after ensuring death of Nutun Chandra who died onthespot.’  
However seven people gave affidavits which state that Gopal had fled Kundeswari before the offence took place, and six that Gourango was also not present.  
A 78 year old resident of Kundeshwari, for example, said that ‘8 or 10 days before the death of Notun Chandra Singha, myself and my cousin Gorongho Singha and other members of my family all went to India via the Ramgar border. The college principal, Gopal Chandra Das and his family were also with us. When Nutun Chandra died, Goronga Singho and Gopal Chandra Das were not present at Kundeshwari Bhavan. They were with us in India.’  
In addition, three people said that it was the Pakistani soldiers alone that killed Nutun and that the only Bengalis present had their ‘hands tied up’. A 66 year old resident of the village Gohira stated that, ‘At one stage, one soldier shot at Nutun Babu. He fell to the ground at once. After the shooting, within a couple of minutes, the soldiers left the place and took a lot of things with them. With the soldiers, two Bengali men were there with their hands tied up.’  
In the second offence that took place that day, the Tribunal relied on the evidence of Anil Boran Dhor to convict Salauddin of participating in the murder of four men in Bonik Para in Sultanpur. Anil had told the Tribunal that he and his father were picked up from their home by the accused, taken outside and shot along with some other members of the village. He said that he somehow survived, but that his father and two of his uncles died.  
However two people from the village of Sultanpur, said that before the murder Anil had taken refuge in India with them. And another witness, says that soon after the killing he went to the crime scene and heard that only Pakistani soldiers were involved.  
In the third offence, Salauddin was convicted of participating in the killing of 50 people from the village of Unsatturpara. Prosecution witnesses alleged that on the same day as the other two offences, Salauddin had led Pakistan soldiers to the village where they were shot in the BNP leader’s presence. 
Chapala Rani - called a ‘star witness’ in the Tribunal’s judgment had told the court that she was amongst those assembled by the village pond, and that her father and two brother in laws were killed.  
However four people, all residents of Unsatturpara stated that Chapala Rani had taken refuge in India before the incident took place. They also state that Janti Bala Paul, and Sujit Mohafon, whose statements were also relied by the Tribunal, were not present. 
One 66 year old person, for example, stated that on hearing that the Pakistani had set up a camp close to where they lived many people decided to go to India. ‘And with ... Janti Bala Paul, ... Chapala Rani, along with their children,’ the affidavit states, ‘we went on 3 or 4th of April to India by the Ramgar border. Sujit, the younger son of Jogesh Chandra Mohazan, was also with us.’  
In relation to the fourth death sentence offence that took place on the 17 April, involving the abduction and murder of the founder of the Awami League in Chittagong, Sheikh Mozaffor Ahmed and his son Sheikh Alamgir, four people questioned the prosecution evidence given in court.  
One, a 71 year old man who was at that time the ‘linesman’ of the bus-stand, from where Salauddin is supposed to have picked the two men up, said that he had never heard about the incident. Another 65 year old men who ran a tea stall also gave a statement that he had never heard of this incident at the time, ‘The news is totally false .... Because at that time I never saw or heard of any incident like that.’ And two further witnesses, said that the family members of Sheikh Mozaffor Ahmed ó who had testified to the tribunal that Salauddin was present - had never previously claimed that the BNP leader was involved.  
Highly relevant ... but are they true 
So these two categories of witnesses – the six who support the Salauddin’s alibi defence and the twenty that challenge key elements of the prosecution case – are on the face of it highly relevant to the decision on whether the accused is innocent or guilty.  
However, as with any witness, it is possible that these ones are not telling the truth.  
But this can only be determined when they testify in court, and have their evidence tested through cross examination.  
So why were these witnesses never summoned to court to give evidence?  
The short answer is that in relation to 23 separate offences alleged against Salauddin, the Tribunal only allowed the  defence lawyers to call 5 witnesses, subsequently restricted to 4. 
This decision was made after Tribunal had imposed no such limit on the number of witnesses the prosecution could summon. There were in total 41 prosecution witnesses.  
How this happened - the role of the Bangladesh courts as well as that of the defence lawyers - is discussed in the next part of this article.