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.

Thursday, July 30, 2015

Where was Salauddin Quader Chowdhury in 1971?

On Wednesday, the appellate division upheld the sentence of death on Salauddin Quader Chowdhury (SQC), a leader of the opposition Bangladesh Nationalist Party,  in relation to four offenses, and the convictions and sentences of imprisonment in four other cases.

The only amendment made to the Tribunal judgement by the appellate division was an acquittal in one case.

The four offenses for which he was sentenced to death took place on two specific days - the 13th and the 19th April 1971.

The defense argued that SQC was not present in Chittagong on these two particular dates (or indeed throughout the 9 month war). Since the death penalty involves offenses committed on the 13th and 19th April, these are key dates to focus on.

Three defense witnesses in court gave evidence which supported SQC's case that he flew out of Dhaka for Karachi on 29 March 1971, remaining in the city for at least three weeks. If true, it is difficult to see how SQC could have been back in Chittagong after only two weeks.

SQC's defense team wanted to call other witnesses to give evidence in support of the claim that he was in West Pakistan during the war, and in particular during April.

The Tribunal however only allowed the defense to call a total of 5 witnesses to testify for the defense - having allowed the prosecution to call a total of 41 witnesses.

SQC's lawyers obtained affidavit statements from other witnesses - six of which supported his defense concerning his presence in West Pakistan during the war.

Though these statements were lodged with the Tribunal, in its judgment the Tribunal did not refer to any of these statements, only stating that they were not submitted correctly.

The appellate division has not yet published its judgment, so it is not possible to know how the court dealt with this decision on the part of the International Crimes Tribunal to ignore the substance of these highly relevant affidavit statements.

Below is the article published in New Age on 28 October 2013, following his conviction by the Tribunal earlier that month (and before he lodged his appeal before the appellate division) which considers the decision of the Tribunal not to consider these affidavits in its judgment  and raises questions about the appropriateness of Chowdhury's conviction for the offenses on 13th and 19th April - yet alone receiving a death sentence for them.

The article below contains links to both the defense evidence in court and the affidavits lodged with, but whose substance was not considered by the ICT.

Tribunal not consider submitted affidavits supporting SQC’s alibi 
David Bergman

The tribunal that passed the death sentence on opposition leader Salauddin Quader Chowdhury for offences committed during the independence war of Bangladesh did not consider in its judgment the contents of six affidavits which supported his claim that he was not in Chittagong at the time the offences were committed.

The affidavits supported the accused’s alibi defence that on 29 March 1971 he flew out of Dhaka to Karachi where he stayed for three weeks, then travelling on to Lahore where he studied, until August of that year, for a degree at Punjab University.

Chowdhury’s lawyers had submitted the evidence in the form of written statements as the tribunal had earlier restricted to five the number of witnesses which the defence could bring. In the end, due to time restrictions imposed by the tribunal, Chowdhury could only bring four witnesses. 
The affidavits were from people whose names were contained on a long list of 1153 people which the defence had initially provided to the tribunal as possible witnesses.

The prosecution had no limits placed on the number of people it could bring to testify in court – with 41 people giving evidence.

In its final judgment, the tribunal stated ‘some documents’ had been submitted at ‘the fag end of [the] defence argument’ but said that this was done so ‘in violation of the provision’ of the law, and that the lawyers had ‘intentionally refrained from proving those documents by recalling defence witnesses.’

It then went onto state that the ‘defence has miserably failed to prove its plea by documentary evidence that the accused stayed in West Pakistan during [the] whole period of the Liberation War of Bangladesh.’

The judgment however did not mention that the court had earlier allowed the defence lawyer ‘to submit’ the affidavits as evidence to the tribunal.

‘It is an admitted fact that there is no provision to file additional documents on behalf of the defence during trial,’ the court’s 21 July 2013 order stated, referring to these six affidavits and 49 other documents submitted by the defense.

‘Despite of this fact, for the end of justice we are inclined to give permission to the defence to submit additional documents’ and should ‘be kept with the documents filed earlier by the defence.’ The tribunal did not suggest in its order that it considered these documents had no probative value.

No appeal has yet been lodged by the defence or prosecution lawyers. 30 October is the filing deadline.

On 1 October 2013, Chowdhury was convicted for 9 offences concerned with crimes committed during the 1971 war of Independence.

Six of these nine offences – including all four of the offences which Chowdhury was sentenced to death – took place on just two days, the 13th and 17th April 1971 – within one month of the beginning of the independence war.

The thee other offences took place on 14 April, 5 July, and in the third week of July 1971.

Apart from the Salauddin Quader Chowdhury himself, the defence lawyers presented three witnesses at the trial who supported the accused’s alibi defence.

Qayum Reza Chowdhury, told the court that he dropped the accused, his cousin, at Tejgaon airport on 29 March 1971 to take a flight to Karachi, and that, just over a week later on 8 April, went himself to the city, along with two friends Salman Rahman and Nizamuddin.

Nizamuddin, a friend, confirmed that he had travelled with Qayum and Salman Rahman on 8 or 9 April 1971 to Karachi, and that after a few days, he had met the accused at Salman Rahman’s house.

Abdul Momen Chowdhury, who at that time was a diplomat based in Pakistan, said that in the second or third week of April 1971 he went to Karachi and met the accused for the first time at the office of an old school friend Asiqur Rahman.

In its judgment, the tribunal dismissed this evidence citing 14 eye-witnesses who had confirmed that the accused was present at the scene of the alleged offences.

The judgment also referred to evidence that showed Chowdhury was present in Chittagong in September 1971 - including a newspaper article and a special branch report which mentioned that the accused was injured in an attack on his car during that month, and the testimony of doctor who said that he had treated him on that occasion.

However, in coming to this conclusion, the tribunal did not consider the documentary evidence which the tribunal had previously accepted from the defence.

This included an affidavit from Muhammad Osman Siddique, a former United States ambassador, who had known Chowdhury since college days, which stated that he was on the same flight as the accused when he flew to Karachi.

In another statement, Karachi-based Muneeb Arjmand Khan, a friend of the accused since school days, stated that he ‘received’ Chowdhury from the airport 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 also provided an affidavit which stated 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 Quader Chowdhury] would join me, my sisters and my parents,’ it stated.

A further detailed statement was given by Ishaq Khan Khakwani, a former member of the National Assembly of Pakistan.

‘[Salauddin Quader Chowhdury] arrived at Karachi a few days after … 26th March 1971,’ the affidavit stated.

‘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.’

It goes onto state that when Chowdhury came to Lahore, ‘with great difficulty we got him admitted in the Punjab university’ and that the accused stayed within him ‘in our family house … where he stayed with me throughout till we left for London in October 1971.’

He mentioned 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 Bangladesh’ would sometimes join them.

Ishaq also mentioned a trip taken on May 20 1971 when he and Chowhdury drove from Lahore to Malton to attend ‘the engagement ceremony of Dr Nasir Khakwani,’ a classmate of the accused from schooldays.

The statement also states how after their exams in August 1971, he and Chowdhury went along with five other named people – including that of Salman F Rahman – to the hill stations in Muree.

Amongst the documents given to the tribunal along with the affidavits was a letter written by the sitting High Court judge Shamim Hosnain to the country’s current chief justice which stated ‘[the accused] was a classmate of mine at Punjab University at Lahore. It is true that Salauddin Quader Chowdhury was at the Punjab University Campus between the first week of May 1971 till August of the same year.’

A letter signed by Dr Umbreen Javaid, the Chairperson of the Department of Political Science at the University of Punjab, dated 24 January 1971, certified that Salauddin Quader Chowdhury was a student of political science ‘who secured 233/500 for the academic session of 1970-71’ having appeared in the ‘final examination in August 1971.

Two other affidavits - that of Mohamedmian Soomro, and Riaz Ahmed Noon - also supported different elements of the alibi defense. 
Zead-Al Malum, the prosecutor in Chowdhury’s case told New Age that, it was not relevant that the tribunal had earlier allowed the defence to submit the documents; what was at issue was whether the documents had ‘probative value’ or not.

‘Documents only claim probative value if they have been exhibited by the witnesses of the respected parties,’ and these documents were not, he stated.

He added that, ‘At time of pronouncement of judgment the tribunal legally passed its opinion that the documents additionally submitted by the defence was in violation of the law,’ in that they had not been included in a list of documents submitted at the beginning of the trial.

Sunday, June 14, 2015

Geofrey Robertson QC and ICT contempt proceedings

Geofrey Robertson QC is one of Britain's most able and renown barristers, who has written widely on war crimes and who has sat as an international appellate judge at the UN sponsored Special Court for Sierra Leone.

One could not seek a more eminent, independent - or indeed appropriate - person to assess the International Crimes Tribunal, and earlier this year he was asked by one of the lawyers acting for the Jamaat to 'provide an independent opinion on their fairness and on the Tribunal’s proceedings and conduct,' and this was published in 2015

To read about the issue relating to the independence of the report
To read about what the report says about prosecution pakistani military officers

I raise this now, since the Robertson report (which has got almost no media attention in Bangladesh) contains a short section looking at the contempt proceedings against myself in relation to writings on this blog - and since now the Tribunal has given its judgement on the subsequent contempt proceedings against 23 people who signed a statement critical of that particular judgment, it is now possible to share what Robertson said about those contempt proceedings.

However, I will share an edited version for fear that my re-publication of the full version could be the cause of further contempt charges - since it uses choice language about the tribunal that will not be considered appropriate under the current ICT contempt jurisprudence.

So those who want to see, exactly what Robertson has to say about the contempt proceedings, go to p.65/66 of the report. Here is the edited version.

"…. and by 2014 the judges have become even more XXXX and XXX of nationalist assumptions. This is demonstrated by their contempt proceedings against David Bergman, an experienced journalist whose work (notably an award-winning Channel 4 film “War Crimes File”) has helped to draw international attention to the need for justice in respect of the 1971 atrocities, and whose blog has provided reliable information about the course of the trials (see fn 126). He was indicted, simply for questioning whether as many as three million civilians were killed in 1971 (see fn127) 
This figure has become a government shibboleth, but is probably exaggerated, like most estimates of war deaths made in the absence of sound demographic evidence. The original source of the 3 million figure appears to have been a report in Pravda, which at the time was providing propaganda support for the Indian government (which has put the death toll at about one million). Most, if not all, independent studies challenge the 3 million estimate, (see fn128) although the likelihood is that there were at least a million casualties, not all of them were victims of the army and its associates. But even to question XXX that three million died was considered to be a crime. “Why did he create this controversy?” “Why did he write about this issue at this time?” were questions put to Bergman’s counsel by the judges who, when they convicted him in December 2014, showed themselves XXXX of the fundamental rule of free speech which permits questioning of any historical “fact” if done without intent to stir up racial hatred. 
Merely for questioning the ‘official’ death toll of three million, the Tribunal judges ruled that Bergman had “hurt the feelings of the nation’ and XXXX accused him of having “neither good faith nor an issue of public interest”. (See fn 129) This finding, in respect of a journalist of good repute writing on an obvious matter of historic interest, whose calculations are supported by most independent studies, does XXX about the XXX of these judges to make accurate findings of fact when “national honour” is perceived to be at stake. The presiding judge, Obeidal Hassan, went so far as to claim that Bergman “has a perverse mindset about the 1971 war. Let the government carefully scan the matter”. This is language which betrays the court’s XXXXX XXXX. XXXXXXX judiciary bound, under its common law, to suffer the scrutiny of honest critics. (see fn 130) It is fair to say that Bergman was only fined the equivalent of £41, but the case reveals a XXXXX on the part of a Tribunal that XXXX criticism.

Thursday, June 11, 2015

Initial thoughts on the valiant 49 signatories

Shireen Huq, Rehnuma Ahmed, Zafrullah Chowdhury,
Farida Akhter, and Anusheh Anadil outside the ICT
The Tribunal has now given its judgement on the 23 people who signed a statement critical of a previous judgment of the tribunal which had held that writings on this blog were in contempt of court, but refused to seek an unconditional apology. 22 were cautioned but exonerated. Zafrullah Chowdhury was convicted and sentenced to 1 hour in the custody of the court, with a fine of Tk 5,000

To read about the previous judgement 
against this blog, click here

To read about proceedings involving the signatories to the statement, click here

In due course I will be writing quite a bit about this recent judgment. It raises a lot of interesting issues, (particularly when read along with the original judgement upon which the statement was commenting on), about how contempt law involving an alleged 'scandalization of the court' is interpreted by the Bangladesh courts and particularly the International Crimes Tribunal.

Whilst more and more jurisdictions either no longer have that kind of contempt law (for example, there is no such thing as contempt by scandalization in English law), the Bangladesh courts have an increasingly hardline and broad interpretation.

Here, I just want to make the point about how - unlike in Bangladesh -  journalists in India are able to criticize court judgements without apparent fear of recourse to contempt applications by the courts, or by over enthusiastic lawyers.

A fine example of this is in a recent article on the political website the - concerning the alleged errors contained in a decision by the Karanataka High Court which acquitted the former Tamil Nadu Chief Minister J Jayalalithaa in a corruption case.

The article refers to 'glaring errors', 'jurists spitting fire' because of the poor quality of the judgement, the 'judiciary giving legal sanction to corruption', the High Court setting  'a bad precedent, one that encourages bribery', and a judgement that 'will bring down the image of the Indian judiciary in the world'

It is simply unimaginable that such an article could be published in Bangladesh - whether it be about a judgement of the ICT, or one of the High court - without ICT prosecutors or other lawyers (who see themselves as protecters of the dignity of the judiciary) immediately pressing for contempt charges being brought, with thunder and fury  It is also difficult to see how a Bangladesh court would not proceed against the writer and publisher of such an article unless they immediately made an unconditional apology. In fact, it is doubtful that even an unconditional apology could exonerate person writing or publishing such an article

The title of the article itself would in all likelihood be sufficient for a contempt case in Bangladesh: 'More than bad maths: Four big errors that let jayalalithaa off the hook."

The article then goes onto state:
[M]ore serious errors of duplication have been found in Judge CR Kumaraswamy’s verdict. It now appears that the High Court has, erroneously, added loan amounts twice to the income of the defendants. This means that the amount calculated by the judge as ‘explained income’ — the basis on which the court has exonerated Jayalalithaa and others — is a highly inflated figure. ... 
In fact, the High Court appears to have made some more glaring errors.

Jurists are spitting fire at the law used by Judge Kumaraswamy on Page 914 of his order acquitting Jayalalithaa. ...

“Is the judiciary giving legal sanction to corruption?” asked a retired High Court judge who did not wish to be named …

Legal eagles say that this ruling by the High Court judge could set a bad precedent, one that encourages bribery ...

The legal fraternity points out other errors in the judgement. ... 
“This judgment will bring down the image of the Indian judiciary in the world …" he said.
[T]he legal fraternity is certainly chafing at what has taken place
The question of course is this:  if such comments do not bring the Indian judiciary into disrepute do not dishonor the Indian High court or justice system, do not demean 'the majesty' of the Indian courts, do not 'debase' the authority of the Indian High court, do not 'belittle the authority and institutional dignity' of the Indian justice system, do not 'severely shake the confidence of general people' in the authority of the Indian courts, do not create a 'hostile impression in the mind of public on the authority and competence of the court', and are therefore not subject to contempt proceedings in India - why then are far, far, far less serious criticisms of judgements given by Bangladesh courts deemed to do so, and be in contempt? 

Sunday, April 12, 2015

Telling the truth about the tribunal process

There are some very necessary conversations to be had about the the International Crimes Tribunal in Bangladesh. There are important things to be said both by those who, on the one hand  unconditionally support the tribunal, and those who, on the other hand, support the principle of accountability for 1971 crimes and the need for tribunal, but who are concerned about aspects of the particular process.

Unfortunately in Bangladesh, few who fall into the second category feel able to speak publicly about their position, and one wonders whether now any independent newspaper would publish what they had to say. There are two main reasons for this: First, a real fear that a word 'wrong' could result in proceedings for contempt of court before the International Crimes Tribunal;  and secondly having to suffer the resulting abuse and ignorant criticism on social networks and newspapers suggesting that, however thoughtful and accurate one's analysis, you are a 'supporter of Jammat', 'paid by Jammat', 'a supporter of war criminals', and even a 'collaborator' etc etc

As a result the only part of the conversation about the Tribunal that is heard in Bangladesh is from those who unconditionally support the tribunal. It is a great pity that it is not possible to have a healthy and informed debate on these issues.

Whilst there is, from this camp, some very thoughtful and moving writing about the tribunal, there are, also from this camp, those who make completely inaccurate statements about the tribunal which are allowed to remain unchallenged. The Daily Star today carried an op-ed titled, 'The debate over war crimes trials: is there any merit?', claiming that no criticism of the tribunals is merited. It is written by the Convenor of the Canadian Committee for Human Rights and Democracy in Bangladesh, so one would hope at least he would know what he was talking about. However, that is far from the case.

His argument in support of the tribunal is set out out in two key paragraphs near the end of his article and are set out below.
In my limited research, I have not come across any war crimes tribunal whose proceedings are so transparent and where the defendants are given VIP treatment. Also in accordance with international standards, trials are open to all. At the same time, the accused are given adequate time and facilities to prepare their cases. Prosecutors must furnish them a list of witnesses along with the copies of recorded statements and documents upon which they intend to rely. Defendants also have an unfettered right to call witnesses and to cross-examine prosecution witnesses. All of this is in keeping with the International Covenant on Civil and Political Rights. 
The US ambassador-at-large for war crimes Stephen Rapp, who visited Bangladesh a number of times over the past years to monitor the trial process, has emphatically lauded all attributes of the trial process in his last visit to Dhaka in August. In his words, “the best way in the world to find the truth is the judicial process where the evidence is presented, where witnesses are cross-examined, where both sides have an opportunity to be heard and that is what is being done here [Bangladesh]. It is the process that the American government strongly supports,” he affirmed.
Perhaps the only correct statement are his first three words, 'in my limited research'. His research was certainly very limited! There are certainly positive things that can be said about the tribunal - but what the article sets out in these two paragraphs is mostly inaccurate.

Let me go through each of the statements in the two paragraphs in turn.

1. "I have not come across any war crimes tribunal whose proceedings are so transparent" 

These are the ways in which the tribunal in Bangladesh are not as transparent as most other international crimes tribunals. (a) there is no transcript of proceedings; (b) applications made by prosecutors and lawyers for the accused are not publicly available; (c) Tribunal orders given from August 2010 until September 2013 (for Tribunal 1) and June 2013 (for Tribunal 2) are not publicly available; (d) it is difficult (though not impossible) for any person who is not a journalist, lawyer or a party to the tribunal to gain entry to the proceedings; (e) it is not filmed for internet viewing. For these reasons, it cannot be said that the tribunal is a particularly transparent process.

2. "….. and where the defendants are given VIP treatment." 

I think one can be assured that the facilities of the jails in the Hague, for example are better than those in Bangladesh - even if in Bangladesh they are called VIP.

3. "Also in accordance with international standards, trials are open to all." 

Technically the trials are open to all, but in practice they are difficult to access if you are an ordinary member of the public who just wanted to watch the proceedings. You need to get a pass, and to get a pass you need to get permission from the registrar, but the registrar is inside the tribunal building, and it is not easy to get access to the registrar to get the permission. 

4.  "At the same time, the accused are given adequate time and facilities to prepare their cases." 

Clearly, this depends on what is considered to be 'adequate time' to prepare their cases. The law states that a trial can start as little as three weeks after the prosecutor provides the 'list of witnesses intended to be produced along with the recorded statement of such witnesses … and copies of documents which the prosecution intends to rely upon in support of such charges.' (section 9(3)) Some of the trials have taken place just over three weeks after the lawyer has received the documents, and in other cases they have been given a few more months. 

5. "Prosecutors must furnish them a list of witnesses along with the copies of recorded statements and documents upon which they intend to rely." 

This is correct - but it is the minimum you would expect the prosecutors to provide. It perhaps should be noted that the law does not though require prosecutors to provide any exculpatory evidence that they have found, which is required in the international tribunals and is a requirement common in developed legal systems

6. "Defendants also have an unfettered right to call witnesses … "

The defendants do not have an unfettered right to call witnesses. The Tribunal has limited the number of witnesses whom the accused is allowed to testify on his behalf. The Tribunal's decision about the numbers of witnesses is generally made right after the prosecution has finished calling its evidence and is made without knowing the nature of the evidence that other witnesses, that the defense have sought to call, would have given. As a result: 
- in the trial of Salauddin Quader Chowdhury, the prosecution brought 41 witnesses to the tribunal to prove 23 offences, but the defence was restricted to only calling 5 witnesses.
- in the case of Abdul Alim, the prosecution was allowed 35 witnesses, but the defence was restricted to 3 witnesses to disprove 17 offences.
- 4 witnesses have been permitted in Motiur Rahman Nizami’s defence relating to 16 charges;
- 5 witnesses in the trial of Kamaruzzaman involving 7 offenses;
- and 6 in the case of Abdul Quader Molla in defence of 6 offenses.
- only in the cases of Delwar Hossain Sayedee (the first case brought to trial) and Golam Azam were the number of defence witnesses allowed to be in double figures – 20 and 12 respectively.
To read about the issue of the lack of witnesses, click here

(It should be noted that the defense have in some cases initially sought to call a totally unreasonable numbers of witnesses to the tribunal)

6. "…. and to cross-examine prosecution witnesses." 

It is not correct to say that there is an 'unfettered right … to cross examine witnesses'. The appellate division has ruled that the accused cannot cross examine a witness on any previous statements that that witness had previously given. This includes statements that the witnesses are supposed to have given to the Tribunal investigation officer - which is the basis for the whole trial proceeding. This is a rule that does not apply in normal Bangladesh law nor do I know of any other jurisdiction where it applies. This is  significant as it means that the defense lawyers cannot point to the contractions between what witnesses stated in court and what they had earlier stated to either the investigation officer or in interviews to other people. To read how this was significant in the Molla case, see here

7. "The US ambassador-at-large for war crimes Stephen Rapp, who visited Bangladesh a number of times over the past years to monitor the trial process, has emphatically lauded all attributes of the trial process in his last visit to Dhaka in August. …."

This is also not true. This is what he said at the press conference he gave, and where a transcript is available:
What I have noted before is that there are aspects as to the rights of the defense that are not observed in a way that is consistent with international law. The defense has had situations where they have not been able to summon witnesses on their own, and under the international covenant it is said the defense shall have the same right to summon witnesses as the prosecution. And when it comes to cross-examination, being able to cross-examine witnesses based on prior inconsistent statements has been restricted. When it comes to questions of the substantive law, I was very hopeful that it be clear that crimes against humanity would be defined as they are internationally, as being part of a widespread or systematic attack against a civilian population. Such attacks obviously happened here.
But it should be clear that the proof must be provided. And I think there were efforts by the prosecution to put on the proof that was there. Later on a decision was made that you do not to need do it—that you do not need to follow these international standards. You can just say that a crime against humanity is any attack against a civilian. Well that is not an international crime. That is an ordinary murder.

So there are places where I have been disappointed, frankly, by the process. But it is not done yet and I am hopeful. I do not want to be someone that just criticizes and points to errors, because in every system there are challenges. But here in this one where you start with a statute that does not contain the modern international criminal law and when you have a constitutional provision that say none of the rights that apply under your constitution apply to this court, there is a lot of room for development. There are positive developments, positive aspects, and there are some that are less than positive.

So as we would say in our country, where we have juries: The jury is still out. We are still evaluating how this is going and are hoping that as this process moves forward that it will meet the high goals and aspirations that all of us have for it.
As I say, there are aspects about it which I am happy, others that I am not happy. Okay?
In addition, subsequent to this Rapp gave a phone interview to a number of journalists, which can be read here, which also indicates his concerns.