Has the Economist got it right?

Has the Economist got it right?

 

The Economist Magazine published a damning editorial last month on Bangladesh’s International Crimes Tribunal.

The editorial starts by saying that the Bangladesh’s tribunal had ‘fallen a long way short of Israel’s model of due process’ concerning its trial in 1961 of the Nazi leader Adolph Eichmannn. It then set out a string of criticisms about the tribunal in Dhaka, stating that ‘these are profound judicial failings, falling short not only of the standards of the Eichmannn trial but also of the requirements of Bangladeshi law. They contradict repeated government assurances that the trials would be models of judicial process.”

It goes on to argue that the ‘ostensible and laudable aim of these trials’ helping Bangladesh come to terms with its past has ‘been an utter failure’. It then criticizes ‘most Bangladeshis’ who it says ‘are cheering on the tribunal’s flawed proceedings’ with few seeming ‘to care a jot for due process’ and everybody thinking ‘that the defendants are getting their just deserts.’

It closes with the following paragraph: The Economist has no sympathy for the views of Jamaat or its backers. But justice does not exist solely for those with a particular approved outlook. As the Eichmannn trial demonstrated, due process is essential to provide true justice to the victims of genocide. Eventually Bangladeshis will also come to recognize this and demand a proper accounting. But by then it will be too late. The war-crimes tribunal is poisoning the well from which Bangladesh will one day want to drink.’

A recent op-ed in Bangladesh’s The Daily Star about the editorial is very critical: ‘The piece is typical of a mercenary writer where he just pens something only because he has to do it,’ it says. ‘The ignorance of the analyst is so obvious that he must have taken it as granted that the prospective readers, mostly Bengalis all around the globe, are a bunch of ignorant people who will digest any garbage that comes from a weekly published from a Western capital.’ It goes onto say that, The Economist is so bent on discrediting the trial that it has presented mostly unsubstantiated and ridiculous assertions, reflecting its absolute ignorance of the history of Bangladesh’s birth and the misinformation fed by its clients.’

The criticism is obviously hyperbolic. But other articles in the Bangladesh media have been similarly critical. A government news agency article, widely printed in different newspapers, quotes the respected lawyer Dr M Zahir as saying, ‘The article appears totally motivated . . . these (allegations) are rubbish.”

Comparison with Eichmannn

The Economist decision to compare the Bangladesh tribunal with the 1962 Eichmannn trial in Israel is an interesting one. Bangladesh supporters of the tribunal processes/practices tend to use the 1946 Nuremberg trials as their standard by which to compare the current trials – in particular pointing to the fact that nearly 70 years ago there was no right to appeal. For them, since the 1973 Act has the right of appeal, and therefore an improvement on Nuremberg, no criticism is justifiable.

A trial that took place as long ago as Nuremberg shouldn’t, of course, be the template for one conducted in 2013. New standards have emerged, Bangladesh has signed up to international conventions which impose new obligations, and if there is any meaning to the Bangladesh foreign minister’s statements that the tribunal meets ‘all international standards’ (which she continues to utter at diplomatic exchanges), then one must look beyond Nuremberg. In any case, it is not at all clear, other than in the issue of the ‘right to appeal’ that the Bangladesh ICT comes out that much better than Nuremberg; whilst the 1946 trial was criticized at the time for many things (see the Economist editorial in October 1946, for example), there were no allegations of witness abduction or that of prosecution/tribunal collusion as there have been at the Bangladesh tribunal.

Therefore at first glance the Eichmann trial in the early 1960s could make a more interesting comparison – particularly because, like the Bangladesh tribunal, it was a national tribunal prosecuting international offences.

However, there are reasons why this may not be the case. Even though Israel was a relatively newly established country, it’s legal system in 1960 was more established and developed than that of Bangladesh’s now – which is replete with corruption, delays, politicization and inadequate resourcing. Comparing Israel’s criminal justice system in 1960 even with that of Bangladesh in 2010 is arguably not a fair one.

Another point about the Eichmann trial is that it is took place in a country without any political party supporting him. There was no Nazi party in Israel – and few if any Israeli citizens were supportive of Eichmannn or willing to be critical of the trial process. This is very different from Bangladesh – where two of the accused come from the main opposition party, the Bangladesh Nationalist Party and the other ten from its alliance partner, the Jamaat-e-Islami.

It was therefore always going to much easier for the Eichmannn trial to unify Israel – to succeed in a way in which The Economist claims the trial has not done in Bangladesh. If the Eichmannn trial had taken place in an Israel, where for example, the Nazi party remained a considerable political player, with three of its leaders ministers in a coalition government just five years before the trial – it is difficult to believe that the Eichmannn process would have been anywhere as smooth or unifying.

The third point about the Eichmannn trial is that it was not the perfect trial as implied by The Economist. The magazine alludes to the Nazi leader being ‘kidnapped’ but does not state that at the time this raised significant questions about the legality of the trial with The Washington Post editorial condemning Israel’s “jungle law” and The Christian Science Monitor equating Israel’s claims to those of the Nazis.

It is true that by the time the trial itself took place, Argentina and Israel had come to an agreement about the ‘kidnapping’, so that the court was able to argue that since ‘Argentina has condoned the violation of her sovereignty and has waived her claims, including that for the return of the Appellant, any violation of international law that may have been involved in this incident has thus been remedied.’ In addition, the Israeli court relied on Israeli legal precedents that the circumstances of his capture had no bearing on the legality of his trial. Nonetheless, one can imagine that The Economist would not be quite so obliging if the Bangladesh government sidestepped extradition and international laws and abducted Chowdhury Mueen Uddin or Ashrafuzzaman Khan, both under investigation for alleged war crimes committed during the 1971 war by the Bangladesh tribunal, from England and USA respectively.

The criticisms of the tribunal

The nub of The Economist’s piece is a number of criticisms of the Bangladesh international crimes tribunal. And here The Economist is on firmer ground.

The first criticism is that the government has interfered in the court’s deliberations. In the government news agency article, Dr M Zahir is quoted as saying, ‘What interference you are talking about? Had the government intended to interfere in the trial process they would not have constituted the tribunal and opt for a lengthy trial process . . . they (accused) could have been handled in other ways.”

Without going into too much detail, anyone who has read the Skype conversations between Justice Nizamul Huq Nassim and the ex-patriate lawyer Ziauddin Ahmed would realize that the government ministers, at the very least, had inappropriate contacts with the judges. These included seeking to dictate the sequence of judgments (with the obvious implication that they would be convictions) and forcing the resignation of one judge.

It is of course possible that in his conversations Justice Nassim was exaggerating or simply not telling the truth; that the things he tells Ziadduin are simply not true. And there is of course no other confirmation that the things Nassim said happened, actually happened. Yet nonetheless, Nassim had no reason to lie about these things and none of the parties (other than Justice Jahangir) have specifically denied the specific claims made by the judge.

Secondly The Economist said that ‘Public discussion of the proceedings has been restricted.’ It is not entirely clear what The Economist is referring to here. Journalists are allowed into the tribunal and do report on it. The tribunal has been willing to use its very wide powers of contempt against journalists and papers and this certainly does inhibit critical journalism on the trials being published – but contempt powers are generally quite widely used by Bangladesh courts and so there is nothing special here. It is certainly true that tribunal registrar has at times hindered those linked to foreign observers from taking notes at the tribunal and that in addition to the contempt risks, few dare to write critically about the tribunal from an independent position for fear of being accused of being a Jamaati, and the social ostracism that will occur. However The Economist criticism is perhaps overplayed here.

The third criticism is the restriction on the number of defence witnesses. On this point, Dr Zahir is quoted by the government news agency as defending the restriction of witnesses. “The tribunal cannot and should not tolerate the defence’s effort to lengthen and upset the trial process by bringing witness after witness . . . The trial cannot go on for eternity,” he says.

However, allowing the defence to be given sufficient opportunity to present its case does go to the heart of due process in these trials.

And there is no doubt that the tribunal has for no apparent legitimate reason, restricted the number of defence witnesses that could come to the tribunal. In Delwar Hossain Sayedee’s case the prosecution had no limitations on the number of witnesses it could bring, and in fact brought 28 to court (which included seizure list witnesses and the investigation officers). Sayedee’s defence lawyers wanted to bring 48, but were only allowed a maximum of 20 – and in fact the tribunal stopped the defence case when it had only brought 17 witnesses. The tribunal also refused to issues summons for defence witnesses. The tribunal gave no clear reasons for either of these decisions.

In Abdul Quader Mollah’s case the prosecution again had no restrictions on witness numbers, and brought 12 witnesses to court. The defence had at the beginning of the trial given a list of 965 witnesses – clearly a ridiculous number. After the prosecution had completed its evidence, it applied to the tribunal for an order limiting the number of defence witnesses to ‘not more than 3 or 4’. The defence responded by saying it would reduce the number of witnesses it wished to call to the Tribunal to a reasonable number. In its order, the tribunal initially agreed to four defence witnesses being called, but following pleas from the defence increased the number to just 6.

The Mollah case was dealt with by a different Tribunal, and this court gave reasons for its decision – that in its view the defence was only going to need witnesses as part of its ‘alibi’ defence and six witnesses were sufficient. The problem with this argument is that the tribunal, when making this order, had absolutely no knowledge of what the defence witneses were or were not going to say and so had no basis to making that claim. (Indeed the tribunal was proved wrong as even amongst the six witnesses, there were also people that were not ‘alibi’ witnesses.) Moreover, even if the defence was only going to bring ‘alibi’ witnesses, how before any of the witnesses had come to testify could the tribunal know that six was sufficient?

In Golam Azam’s case the tribunal has closed the defence case after hearing only one witness. The defence had asked for a weeks adjournment to be able to allow them to call more witnesses, claiming that the Shahbag protests had scared many people from coming to give evidence. The tribunal rejected the application – having also previously refused to issue summons to allow two expert witnesses to come from abroad.

And in Kalam Azad’s in absentia trial, the state appointed defence lawyer did not call any witnesses.

The systematic restriction in the number of witnesses whom the Tribunal allow the defence lawyers to calls is perhaps one of the most serious due process defects in the trials.

The Economist, next says that one witness ‘was even kidnapped on the steps of the court.’ This refers to the alleged abduction of Sukhranjan Bali, whose brother Bishabali was killed in 1971, and whom it is claimed had agreed to give evidence on behalf of Delwar Hossain Sayedee. Evidence strongly suggests that such an abduction by law enforcement officers did happen – and so the Economist is fair to make that comment. However since there remains no conclusive evidence, The Economist would have been truer to the record to have added the word ‘alleged.’ A related concern, on which the paper does not however comment, is the lack of interest on the part of the Tribunal to investigate the allegation, and its consideration of how this incident may affect the trial.

The UK magazine then goes on to comment on the judges who decided the Sayedee’s case. It states that ‘the presiding judge resigned and the death sentence was handed down by three men who had not heard all the witnesses.’ The Daily Star op-ed denies this and says ‘In fact, two of the three judges heard all the witnesses and the third judge heard both the prosecution and the defense arguments all over again.’

It is true is that none of the three judges heard all the evidence. Justice Anwarul Huq, appointed at the end of March 2012, heard all the defence witnesses, but none of the prosecution witnesses – except for the cross examination of the investigation officer. Jehangir Hossain appointed at the end of August 2012 had not heard any of the prosecution evidence. And Justice ATM Fazle Kabir judge had only heard the prosecution evidence – though not the cross examination of the investigation officer. So again, here The Economist is correct. In such a situation a retrial would arguably have been the right response.

The final criticism from The Economist referd to the Abdul Kalam Azad trial where the paper says that he was represented by a lawyer who did not have nearly enough time to prepare a case which ended in a death sentence. The Economist criticism here is actually the least of the problems with this trial! It was an in absentia trial and the state appointed lawyer had been a member of the governing ruling party in his youth, who admitted in an interview that he undertook no investigations on behalf of his client and did not even go to the alleged crimes scenes. In fact, the lawyer himself felt that he was given sufficient time to prepare himself.

The Economist is far from comprehensive in its criticism – failing for example to mention the systematic deceit of the prosecution and the investigation agency in the Sayedee case over its submissions to the tribunal about the presence of witnesses in its safe custody house.

More intriguingly, The Economist did not mention on its list perhaps the most serious concern with the tribunal – which it had in part exclusively revealed in a two page spread in December 2012 – which was the collusion between the prosecutors and Justice Nassim, who was chairman of one of the tribunals. It also showed how the judge was also working closely with an expatriate lawyer whom he knew was at the same time advising the prosecution.

It is often said by uncritical tribunal supporters that criticisms of the tribunal like the ones set out above are not relevant as the tribunal does not need to meet ‘international standards’. However, the question of international standards is really a distraction since the concerns involve considerations at a far more basic level. One does not need to bring in international standards to appreciate that collusion between the prosecutors and a judge is wrong, that failing to allow defence witnesses to come to court is not fair, and the alleged abduction of a key defence witness by law enforcement agents from directly outside the tribunal raises serious questions about the role of the state in the trial.

Responding to ‘flaws’

The Economist editorial says that most Bangladeshis are ‘cheering on the tribunal’s flawed proceedings’ and ‘few seem to care a jot for due process.’

It is certainly true that, with very few exceptions, the country’s civil society establishment – along with anyone who supports the Awami League, or is a strong supporter of the war crimes tribunal or just hates the Jamaat-e-islami – either do not accept that there are any flaws in the tribunal or do not consider that any of the flaws are particularly significant, or that if there are any flaws, think that the overall purpose of bringing justice to those who died in 1971 overrides them. The general view, as The Economist says, is that the ‘defendants are getting their just deserts’ and due process arguments are simply strategies on the part of the accused to try and wriggle out of their guilt.

In its criticism of this attitude, what The Economist perhaps fails to appreciate is some of the reasons for these views; a desperate desire to see some kind of justice for the hundreds of thousands who lost their lives at the hands of the Pakistan military and their collaborators; long years of seeing those who supported the Pakistan military in 1971 rise to positions of power; a criminal justice system that cannot be trusted and constantly allows the ‘powerful’ and ‘influential’ to escape justice on technicalities; a view that the country could not organize any better kind of trials; knowing that this is the one and only chance for accountability; and a desire for the end of the influence of fundamentalist Islamic politics.

These may not ultimately be anywhere near good enough reasons to turn a blind eye to flawed trials – particularly when the world is watching, and as suggested by The Economist where they could initiate cycles of revenge and retribution – but these explanations do need to be taken into account when criticizing Bangladesh society’s response. Coming back to Israel, was their widespread concern and criticism in the country about the kidnapping of Eichmann? I don’t think so

What ultimately this is all about is the inherent difficulty in holding ‘war crimes’ trials within a country where the government has a clear political interest in the outcome of the trial, where the general population have been seriously victimized during the war and emotions are strong, where the assumption of the accused’s guilt is strong amongst a very significant section, and where the independence of judges is under huge strain.

International criminal lawyers and activists always used to think that the goal was to bring justice as close to the people, to remove it from tribunals in The Hague and, bring it closer to the place where the crimes took place. Unfortunately, the Bangladesh tribunal – and in fact, though to a lesser extent, the Eichmann trial – show that this is far from the best approach if a fair process is considered at all important.

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David Bergman
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