Toby Cadman Rejoinder to Government of Bangladesh

On Jan. 31, I published an opinion piece on Just Security entitled “What Should the International Community do to Address Impunity in Bangladesh?” Mohammad Ziauddin, the ambassador of Bangladesh to the United States, has since responded with a Letter to the Editor.

The statement by the honorable ambassador requires a response as it is replete with what Sen. Patrick Leahy (D-Vt.) alluded to in his Oct. 23 statement, in which he described the Bangladeshi government’s response to his concerns as “blanket denials, obfuscation and even falsehoods.”

The ambassador makes a number of accusations, many of which are highly defamatory, and makes me the subject of his ire rather than focusing on the human rights abuses that are described in my piece and were the subject of a recent panel discussion in Washington, D.C., co-organized by Georgetown Law School, the Robert F. Kennedy Center for Human Rights and Guernica 37 International Justice Chambers, of which I am a co-founding member.

Whilst I am not surprised by the ambassador’s letter (I have become quite accustomed to personal attacks by members of the Bangladeshi government and its supporters — including death threats — and was actually detained at Dhaka airport during my last trip in August 2011 before being deported upon the order of the Home Minister), the tone of the response is not becoming of an ambassador, who one would expect to be representative of all Bangladeshis and not just the incumbent Awami League government.

Before I embark upon a detailed response to each of the allegations set out in the ambassador’s letter, it is important to stress that much of what is stated by the ambassador is a deliberate misrepresentation and at times simply false. It is also of note that none of the assertions advanced by the ambassador are supported by any credible independent evidence. In my opinion piece, I was required to provide links to back up some of the statements made — as one would expect from such a highly reputable forum as Just Security. In my view, the ambassador should be held to the very same high standard. Whilst I encourage debate on these issues, mere unfounded and highly derogatory statements are simply inappropriate and unbecoming of a senior government official.

The ambassador, in his letter, fails to engage on any of the serious allegations raised by a host of independent sources including the UN High Commissioner for Human Rights, the UN Working Group on Arbitrary Detention, the UN Working Group on Enforced and Involuntary Disappearances, the UN Special Rapporteur on the Independence of Judges, the UN Special Rapporteur on Summary Execution, the UN Special Rapporteur on Torture, Human Rights Watch, Amnesty International, the International Center for Transitional Justice, U.S. Congressional Tom Lantos Human Rights Commission, RFK Center for Human Rights and members of the U.S. Congress, the UK and European Parliament, and the European Union, to name just a few. He fails to address statements made by preeminent experts, such as former U.S. Ambassador for global criminal justice Stephen J. Rapp, Lord Alex Carlile QC and Geoffrey Robertson QC. The entire focus of his ire is on me – that has become a common theme.

In terms of their honest and sincere engagement, the ambassador would do well to consult and respond to the statement by Leahy; the independent report by Geoffrey Robertson QC, which recommended the highly flawed Bangladesh International Crimes Tribunal be referred to the UN Security Council; the joint statement by the International Criminal Court president and deputy prosecutor, which followed false statements issued by members of the Bangladeshi government and the Supreme Court; and an opinion piece published in The Hill by Rapp, the former U.S. ambassador for global criminal justice, entitled “Justice Not Served in Bangladesh.” All of these points clearly demonstrate the Bangladeshi government’s dishonest attempts to circumvent the rule of law and issue statements that are at best misleading and at worst falsehoods.

The ambassador begins with the accusation that I failed to disclose my professional interests in my article. I have never sought to hide nor conceal that I have been engaged by members of the political opposition in Bangladesh. I am also engaged pro bono by a number of families of those individuals that are victims of enforced disappearance and extra-judicial killing in the country. It is also a matter of public record that I have actively petitioned the Prosecutor of the International Criminal Court to open a preliminary examination into the situation in Bangladesh. I have actively campaigned for greater discussion on the situation in Bangladesh and its total abandonment of human rights and fundamental freedoms.

The ambassador attempts to mischaracterize Bangladesh Jamaat-e-Islami (BJI), a conservative Islamic political party in opposition, as an extremist group that is involved in acts of terror. Such a mischaracterization is not based upon any credible independent evidence, but is used to discredit the valid criticisms that are made of the government and its security Forces by members of the political opposition. It is correct that BJI opposed independence in 1971 and sided politically with Pakistan, but it has always denied any involvement in crimes committed during the 1971 War of Liberation and consistently denied any involvement in subversive or violent conduct since then. That said, I have always maintained the position that if any member of the party engaged in criminal conduct in 1971 (or acts of terror more recently) then they should be charged and brought to justice before an independent and impartial tribunal of law, but regrettably the criminal justice institutions in Bangladesh are neither independent nor impartial. For this reason, the BJI has consistently called upon the UN to conduct an independent and impartial investigation into such allegations.

The ambassador refers to the 2014 parliamentary elections and the opposition’s boycott as an attempt to disrupt and delegitimize an election that the incumbent was destined to win. He then goes on to accuse the Bangladesh National Party’s chairman, Tarique Rahman as having fled in 2004 after he was implicated in a grenade attack on then-Prime Minister Sheikh Hasina Wajed. Firstly, I do not act for the BNP or for Mr. Rahman, and therefore it is not my place to defend him or his party. Having said that, the statement that he lives comfortably in London disregards, I would suggest calculatedly, the fact that he was granted political asylum in the U.K. as a result of what was alleged to have been ill-treatment (possibly torture) during a period of detention in Bangladesh.

Regarding the election, I do not, nor have I ever supported the decision taken to boycott the elections. I do not consider it to be sensible political strategy and, although there were serious concerns as to the transparency and fairness of the election, the Awami League was effectively re-elected without hardly a vote being cast. That is clearly not a representative election and one must hope that conditions are in place for a free and fair election at the end of this year, one that is properly monitored by the international community.

The ambassador declares that the BJI was declared an illegal party due to allegations of a “campaign of violence.” That is simply untrue. BJI has not been declared an illegal party and it still enjoys ongoing dialogue with the United Nations, the European Union and many governments. It was not permitted, following a High Court order, to register to participate in the 2014 elections due to the fact that its constitution is considered to be inconsistent with the constitution of Bangladesh. That matter has been under appeal, with no hearing being scheduled for the past five plus years.

The ambassador apparently seeks to sensationalize his response by making allegations against the political opposition of setting fire to buildings, burning the homes of ruling party officials and killing law enforcement officials. These allegations are not supported by any evidence. It is an allegation that is frequently made without reference to any credible, independent evidence. The political opposition has consistently called upon the international community to independently investigate all incidents of election violence. Once again, if there are credible allegations that any individual, whether a member of the ruling party or the political opposition, has engaged in criminal conduct they should be brought to justice through a credible judicial process. However, the practice of detaining individuals without charge for months on end, often in undisclosed locations without access to lawyers and their families, is not justified in any system based on the rule of law.

It has been highlighted in a number of credible reports by international human rights NGOs such as HRW and Amnesty International that the majority of those persons killed during protests are members of the opposition parties and the allegations of damaging Hindu temples are clearly set out in our Article 15 Communication to the ICC Prosecutor. It is of course the role of the ICC Prosecutor to investigate the entire “situation,” which is what we have asked the ICC Prosecutor to do. The ICC Prosecutor would not be bound to investigate only members of the government or its State Security Forces. If it concludes that non-state actors are responsible for crimes within the jurisdiction of the Rome Statute, the Prosecutor has the discretion to charge them too.

The ambassador states that “any reasonable person would say that Sheikh Hasina’s government is cracking down on violence, protecting innocent citizens and maintaining rule of law.” Clearly, the ambassador fails to appreciate the significance of the reasonable person test and attempts to distort the issue with counter-allegations of a violent attack in 2015, in which nine people, including three children were killed. This attack, widely reported in the media, was condemned in the strongest possible terms by a host of human rights groups and the U.S. State Department, which called for an end to the “unconscionable” fire bombings. This attack, in particular, was part of a month-long unrest, in which 76 people died following the confinement of the leader of the opposition Khaleda Zia. These attacks were deplorable and it is quite right that those responsible should be brought to justice to the full extent of the law. However, by the same token, those acts carried out by the State Security Forces should be subject to the same level of scrutiny and public outcry. There can be no selective application of human rights and fundamental freedoms.

The ambassador appears to suggest that the suspension of certain rights is justified. The point that is being made in terms of shrinking of democratic space for civil society is not about prosecuting persons accused of acts of violence, as the ambassador surely knows, it is about the space for demonstrating against the government and its policies, it is about circumventing free speech and using the State machinery, including the courts, to curtail free speech, freedom of assembly, and the right to challenge the government.

The ambassador states that any “widespread criminality” has been carried out by the BNP and BJI, and not the Bangladeshi government. This, unfortunately, runs counter to the credible reporting of groups such as HRW, which in January 2017 repeated its call to disband the Rapid Action Battalion following the rare conviction of a number of members of the State Security Forces for abduction, murder and destroying evidence. HRW stated that “for too long, RAB officials have been shielded from prosecution by successive governments, some even justifying their crimes.” Both HRW and Amnesty International have consistently cited credible reports of the Bangladesh State Security Forces bearing responsibility for hundreds of disappearances, cross-fire shootings and extra-judicial killings. The government’s response, which is repeated by the ambassador in his letter, is that such reports are biased and unreliable. One must ask the ambassador, and the Bangladeshi government, are all the reports biased and unreliable, or just those that the lay the blame at the door of the government and the State Security Forces?

The Ambassador then jumps to the defense of the Bangladesh International Crimes Tribunal (BICT) making the proud, albeit unsupported, declaration that Bangladesh is at the forefront in prosecuting crime. He makes the sinister statement that one of the accused, Mir Quasem Ali was part of the Al-Badr militia that modeled itself on Hitler’s SS that was responsible for the mass extermination of more than 6 million Jews during the Holocaust. Using such sensationalist language to create an atmosphere of such hostility and vilification seems clearly intentional.

It is quite clear that the 1971 War of Liberation was one of the worst conflicts in modern history. Reports suggest between 300,000 and 3 million deaths, 10 million forced to flee into neighboring India, and rape and sexual assault committed on a massive scale. Whether one believes the upper or lower figures of civilian casualties is irrelevant. It was a conflict that caused major suffering and the fact that the international community did not establish an international criminal tribunal represents a stain on the reputation of the United Nations. There was a vacuum of accountability for decades and impunity prevailed. The Awami League Government under Sheikh Hasina Wajed was naturally applauded by the international community when it campaigned to establish a war crimes tribunal as part of its 2009 election manifesto. What followed however is deeply alarming and perhaps central to the isolation of the BICT in international criminal justice circles and the contempt with which it is shown by jurists around the world.

Following the announcement that the government intended to re-establish the BICT – a military court set up in 1973 following a national act of parliament that was intended to put on trial Pakistani military commanders – as a civilian war crimes tribunal, offers of technical assistance flowed in from the United Nations, the International Bar Association War Crimes Committee, the U.S. State Department Office of Global Criminal Justice, and NGOs, such as the International Center for Transitional Justice. Whilst the ambassador may consider this to be Orientalism or post-Colonial interference, the offers of technical assistance were sincere. Due to the lack of accountability for a period of more than four decades, establishing an accountability process for historical crimes is challenging, and technical assistance from experts in the field was important, particularly considering there was little or no expertise in Bangladesh among the judges and the legal profession. Regrettably, the government of Bangladesh refused all forms of assistance, primarily based on their reluctance to remove the death penalty, and established the BICT as a national institution with no international support or assistance.

There are a number of critical reasons why the BICT fails to meet international standards of fair trial and due process. Although it is outside the scope of this response to list all the failings, it is important to cite some of the fundamental defects. For example, the legal framework establishing the BICT is outdated and does not reflect the modern-day status of international humanitarian law in terms of the definition of crimes and procedural safeguards. One of the most critical failings is the suspension of fundamental rights guaranteed under the Bangladeshi constitution to any person charged with an offense under the International Crimes (Tribunals) Act 1973 by virtue of the First Constitutional Amendment. What this means in practice is that all of the due process guarantees, safeguarded under the Constitution to an accused in any criminal trial, are removed. Further, the 1973 Act itself removes any possibility to challenge the jurisdiction of the BICT, to seek the removal of an individual judge for bias, or to challenge, by way of interlocutory appeal or judicial review, any decision of the BICT. The only appeal that an accused person can bring is against conviction or sentence in the Appellate Division of the Supreme Court; a remedy that has proven to be quite ineffectual for the reasons set out below.

The ambassador states, quite wrongly, that the BICT is the only war crimes court in the world that allows for appeal to the nation’s highest court. For example, the Section for War Crimes at the Court of Bosnia and Herzegovina (an institution set up in 2004 and composed, for a transitional period, of national and international judges and prosecutors) established an Appellate Division that dealt with, not only final appeals, but also interlocutory appeals and challenges and a further right of appeal to the State Constitutional Court and ultimately the European Court of Human Rights in Strasbourg. This is also the case in Rwanda, Kosovo, Serbia and Croatia. It is therefore quite clear that not only is the statement aimed at holding up a failed state institution, it is also palpably false. It also ignores the fact that all war crimes tribunals, national and international, established since the International Military Tribunals at Nuremberg and Tokyo, have an appropriate appellate jurisdiction either through the tribunal system or through national appellate courts. What the Ambassador is really saying is that the BICT has an appellate jurisdiction in the Supreme Court, however effectual it may be, and the Nuremberg Trials did not.

The Ambassador attacks my criticisms of the BICT, although that was not the central theme of my opinion piece, and accuses me of “[enlisting] other westerners to attempt a sort of judo on the war crimes trials.” It is unclear what is meant by ‘some sort of judo’, but the ambassador’s criticism misses the point. There are two issues here that require consideration. Firstly, by a presidential decree, only those that fought on the losing side, i.e. opposed independence can be prosecuted. It is recognized that raising such a question is not only politically sensitive, with recent amendments to the laws of Bangladesh, but could also be considered seditious or at the very least contemptuous. However, to place a legal bar on prosecuting those that fought on the side of independence calls into question the legitimacy of the process. Secondly, protest as he might, the ambassador cannot refute the argument that the vast majority of those prosecuted (and executed) are from the political opposition.

In this regard, it is important to note that the BICT has been criticized by virtually all credible international human rights organizations and monitoring bodies. In fact, in relation to the case of Mir Quasem Ali, which was mentioned by the ambassador, the chief justice criticized the prosecution for having produced little or no evidence to substantiate the allegations. What followed was an unprecedented attack on the chief justice, with two government ministers calling for his removal and directing that the appeal be heard again before a different bench. During this time a number of calls were made, including from the UN High Commissioner for Human Rights, for the verdict to be overturned and a retrial ordered due to the serious flaws in the process. This was all ignored, and Ali was subsequently executed. During the appeal, the accused’s son, Mir Ahmad Bin Quasem, who served as his father’s lawyer, was reportedly abducted from his home by plain-clothes officers thereby preventing him from assisting in the appeal or attending his father’s funeral. The ambassador refers to the son’s case later suggesting that there are four criminal charges filed against him. This is a disturbing revelation. Mir Ahmad has been missing since August 2016, and the government has consistently denied any knowledge of where he is. We have repeatedly requested information as to his whereabouts and at no stage has the government ever responded that there are criminal charges against him. When requested by the UN Working Group on Enforced or Involuntary Disappearances to respond a communication filed on his behalf, it failed to even acknowledge receipt. The fact that it is now saying that he is wanted by the authorities, something never previously disclosed, would appear to be tacit acknowledgment that he is being detained by State authorities.

In relation to the allegation of enforced disappearances, the ambassador also refers to the case of Hummam Quader Chowdhury and states, astonishingly, that he was found to be living at home. This is not merely a misrepresentation, it is an outrageous falsehood. It has been widely reported that Hummam was detained for a period of seven months and was only released after the UN Working Group issued a statement, in which it stated that “Enforced disappearance is a heinous crime and an offence to human dignity and no circumstances whatsoever may be invoked to justify it.” It went on to state that

The appeal by the UN experts follows the kidnapping, allegedly by Bangladesh security forces, of three men in August last year. Hummam Quader Chowdhury, Mir Ahmed Bin Quasem and Brigadier General Abdullahil Amaan Al Azmi, were all abducted in the capital, Dhaka, in separate incidentsThe expert panel pointed to widespread criticism of the ICT, including from a number of Special Rapporteurs, and appealed to the Government in Dhaka to take action now, stressing: “All reported cases of enforced disappearances must be thoroughly and independently investigated, and the perpetrators brought to justice.”

It is therefore quite clear that the ambassador, and the Bangladeshi government as a whole, is once again engaging in “blanket denials, obfuscation, and even falsehoods.”

The ambassador responds to the criticism that it has not engaged with the UN Special Procedures Mechanism by stating that “as an elected member of United Nations Human Rights Council, the government of Bangladesh has remained engaged with the UN mechanisms through constructive dialogue.” It is clear that membership in the Council is certainly no benchmark of human rights protection. Bangladesh sits on the Council alongside Afghanistan, Burundi, Ecuador, Egypt, Iraq, Philippines, Saudi Arabia, United Arab Emirates and Venezuela, hardly the paradigm of human rights and fundamental freedoms. Further, in relation to the Working Groups and Special Rapporteurs, there has been absolutely no engagement on the numerous Communications. Let me extend to the ambassador and his government a request in this regard. If there is such an open relationship with the UN Human Rights Council and its Special Procedures, and if the criticisms made are so misplaced, there should be no objection to extending an open invitation to the UN Special Procedures to conduct an in-country assessment prior to Bangladesh’s Universal Periodic Review later this year.

The ambassador hails the reforms made and considers that Bangladesh has an efficient and robust judicial system. He also refers to two examples to demonstrate that no one is above the law, irrespective of party affiliation. Regrettably, these are but two instances. It still remains a system that is under the influence of the executive branch and is replete with corruption and patronage. To prove this point, it is important to note here that the former chief justice, mentioned earlier, after presiding over a constitutional ruling that criticized the government, was subsequently forced out of office, threatened with criminal charges and has been forced into exile ever since.

It is difficult for the government to paper over the cracks of injustice by installing glass-walled interrogation facilities in an environment where a government minister stated that “a bit of cross-fire is needed” and another minster stating that bribes from state officials should be “at a reasonable level.”

The ambassador castigates me for suggesting that the government has attempted to influence the ICC through its Supreme Court. This, once again, completely misses the point that I was seeking, quite clearly, to make. I was not suggesting that the government has sought to influence the ICC Prosecutor over opening a preliminary examination — that possibility had not occurred to me until now. The point I made was that members of the government and members of the Supreme Court traveled to The Hague in June 2017 to meet the ICC President and Deputy Prosecutor for meetings. As noted in my piece, the Bangladesh media reported that a press statement issued by the Bangladesh Supreme Court that the ICC representatives had expressed “satisfaction over the proceedings of war crimes trials in Bangladesh” and suggested that the International Crimes Tribunal of Bangladesh (ICT) “will play an important role in development of overall judicial system in the national level.” The ICC President and Deputy Prosecutor were compelled to issue a statement correcting the misleading reports going as far to say, “neither the President nor the Deputy Prosecutor expressed any opinion whatsoever about proceedings being conducted before the International Crimes Tribunal of Bangladesh (“ICT”) or any other national court proceedings.” Conveniently, the ambassador has failed to address this point.

The ambassador then goes on to suggest that Bangladesh has a free press. This would be comical if it were not so serious. Journalists and activists have been arrested and forced out of the country. In particular, the British journalist David Bergman was forced to leave the country due to criticisms he had made of the government and his reporting on enforced disappearances. To suggest that libel laws are like the U.S. is a gross mischaracterization. Criminal defamation and contempt proceedings are frequently used. One should not forget that the government has previously charged the New York Times, The Economist and Human Rights Watch with contempt.

The ambassador considers that the use of the term extra-judicial executions is recklessly hyperbolic and brushes away the suggestion by stating that they are the result of police actions. Again, this is an example of manipulation, misdirection, and propaganda. It is not just my statement that refers to extra-judicial killings, it is repeated internationally. Are we therefore to assume the position that all commentators are wrong, and that it is only the Bangladeshi Government that is correct? To do so, would be to subscribe to one of the primary tactics adopted by an autocratic regime.

One of the points that I do get wrong and I am content for the ambassador to correct me is the figure of arrests during the summer of 2016. I incorrectly stated that it was 10,000. The ambassador reprimands me, as the figure was 11,000, equating to 1,600 arrests per day, which is, in the ambassador’s own words, a normal day in Bangladesh. If that is correct, that would mean that during the Awami League Government’s current five-year mandate, it will have arrested close to 3 million people. The Ambassador states that this is quite normal in Bangladesh and goes on to state that 8,000 of those arrested were “criminals with outstanding warrants”. If this is true, that still means that 3,000 people were arrested during this period without valid warrants.

Regarding the recent arrest of political leaders of the Bangladesh Jamaat-e-Islami political party, the ambassador takes issue with my characterization of a political meeting and that it is the role of the political opposition to unseat the government, obviously through democratic means. The ambassador stresses that they have been charged with plotting to overthrow the government and that some were fugitives. Firstly, none of those arrested have been formally charged with any criminal offense. Secondly, if they were indeed fugitives, why is it that no proceedings were brought previously and why, after eight months, have they not been charged?

There is a final point, which I believe is highly significant and fundamentally undermines the credibility of the ambassador’s letter. He takes great pains to contend that I make a number of iniquitous allegations that are not supported by reliable and credible facts. He makes these assertions without reference to any reliable or credible facts himself. He states that the allegations are “factually flawed,” “rebutted” and “offensive.” In particular, the ambassador criticisms me for making the allegation of “state criminality.” However, what the ambassador fails to address is that I was referring to the statement of the longest-serving Democratic senator, the former chairman of the U.S. Senate Judiciary Committee and currently serving as the ranking member of the Senate Appropriations Committee. In his statement, Senator Leahy stated: “[like] the inquiries and appeals of others, my concerns have repeatedly been responded to by Bangladeshi officials with denials, obfuscation, and falsehoods … it is beyond a doubt that the rule of law is often violated by Bangladeshi law enforcement agencies. This conduct has become so ingrained that it is not an overstatement to describe Prime Minister Wajed’s government as one that condones state-sponsored criminality.” At no stage in his Letter to the Editor does the ambassador make reference to Leahy’s statement, nor does he refer to the statement of any other international critic of the government. That is a consistent ploy. The ambassador is unwilling and unable to engage on the actual issues and, instead, uses blanket denials, obfuscation, and even falsehoods to distract.

The ambassador rejects these allegations as ‘recklessly hyperbolic’ and ‘offensive’. I would say that it is the circumvention of the rule of law, elimination of fundamental freedoms and the wholesale removal of established principles of human rights and democracy that are reckless and undermines the fundamental values of a democratic state. For that, responsibility lies at the door of the current government and no one else.

 

(Narendra Shrestha – Pool/Getty Images)

 

About the Author(s)

Toby Cadman

Co-founder of The Guernica Group and Head of Guernica 37 International Justice Chambers in London. Follow him on Twitter (@tobycadman).