Sunday Telegraph Article by Andrew Gilligan on Bangladesh War Crimes - My Full Response To Questions
The letter below was sent following a request to respond to allegations against Mr. Chowdhury Mueen-Uddin. Part of my response was printed in the Sunday Telegraph but significant parts were not included. For that reason the letter is reproduced here.
Subject: Chowdhury Mueen-Uddin
Dear Mr. Gilligan,
As you may be aware I am currently advising Mr. Chowdhury Mueen-Uddin and his family on this matter. The first point I would like to make clear is that Mr. Mueen-Uddin's family have been subjected to harassment today by photographers purportedly working for the Sunday Telegraph. This is clearly inappropriate conduct from a highly reputable newspaper. Whilst it is recognised that Mr. Mueen-Uddin has been made the focus of the news story, harassing members of his family is inappropriate and will not be tolerated.
In relation to the allegations that have been put in your two e-mails, I am content to respond as follows.
First, no formal allegations have been put to Mr. Mueen-Uddin and therefore it is not appropriate to issue any formal response. If formal charges are brought, as appears to be the case in light of the comments of the investigator and the Bangladesh Minister for Law, Justice and Parliamentary Affairs, then Mr. Mueen-Uddin may consider issuing a formal response in the appropriate form.
Second, any and all allegations that Mr. Mueen-Uddin committed or participated in any criminal conduct during the Liberation War of 1971 that have been put in the past will continue to be strongly denied in their entirety.
Third, in relation to the statement by Mr. Mohammad Abdul Hannan Khan, the Chief Investigator of the International Crimes Tribunal, Bangladesh that: “There is prima facie evidence of Chowdhury Mueen-Uddin being involved in a series of killings of intellectuals. We have made substantial progress in the case against him. There is no chance that he will not be indicted and prosecuted – if we obtain the prima facie evidence, there is no alternative but to proceed. We expect charges in June.” This statement indicates that the investigation has not been completed and therefore any comment on conclusions to be drawn are highly improper at this stage. For the Chief Investigator to making such public comment raises serious questions as to the integrity of the investigation. The Chief Investigator will be aware that the decision as to the bringing of charges is made by the Prosecutor and not an investigator and any confirmation of charges is to be made by the Tribunal Judges. Therefore, the comments by the Chief Investigator are highly improper and serves as a further basis for raising the question as to whether a fair trial may be guaranteed before the International Crimes Tribunal in Bangladesh.
Fourth, the statement by the Bangladesh Minister for Law, Justice and Parliamentary Affairs, Barrister Shafique Ahmed is a clear declaration of guilt and in breach of the presumption of innocence. The Law Minister states that: "He was an instrument of killing intellectuals. He will be charged, for sure." There can no confusion as to intent behind this statement. The Law Minister has repeatedly made statements that amount to clear declarations of guilt in the past and this is a further example.
It is respectfully noted that the presumption of innocence has no practical application before the Tribunal and members of the Government repeatedly comment on the guilt of the accused with impunity. There are numerous allegations of crimes against humanity and genocide; the allegations are of the gravest character. However, it is for the courts to determine guilt only after having heard the evidence. It is also for the courts to ensure that an accused receives a fair trial as guaranteed under Article 14 of the International Covenant on Civil and Political Rights with due regard to the presumption of innocence. It is of course recognised that in criminal cases that attract public attention, a virulent press campaign and public comment, which creates an atmosphere of animosity, can prejudice a fair trial. Pre-trial publicity raises a number of issues under international law, particularly the inter-relationship between the general right to a fair trial and the presumption of innocence and the Tribunal must perform a careful balancing act with the right to freedom of expression and the general right of the authorities to inform the public of criminal investigations. It is recognised that the courts cannot operate in a vacuum and that reporting; including comment, on court proceedings contributes to their publicity and is thus perfectly consonant with the requirement that hearings be public. However, this is not the case where such comment creates an atmosphere of hostility to the extent that the fairness of proceedings is severely prejudiced in breach of Article 14 of the ICCPR.
Fifth, as noted above there have been no formal allegations put to Mr. Mueen-Uddin. He has been put on notice of these matters solely through a series of adverse media reports, quoting members of the Government of Bangladesh, that have already declared that he will be put on trial in absentia.
Finally, as you will be aware there have been widespread criticisms of the Tribunal, its procedures and its practice. I have been quite vocal in this regard. I have been accused of conspiring against the Government; an allegation which I refute in the strongest terms. I fully support a process that seeks to bring an end to a culture of impunity and a process that will bring justice to victims. I do not support a process that falls woefully short of recognised international standards and restricts fundamental rights to accused solely on the basis that the allegations against them are grave. The failings of the Tribunal, are numerous, and cannot be covered in a short, time-limited, response. Some of the more egregious departures from international norms include the following:
(a) There is a complete absence of equality of arms;
(b) Constitutional rights of due process are removed from anyone charged by the Tribunal;
(c) International conventions and treaties do not apply;
(d) Domestic procedural laws do not apply;
(e) There are no clear definitions of crimes;
(f) There are no rules of evidence and rules of disclosure;
(g) There is no practical right to challenge the jurisdiction of the Tribunal, its legislative framework, any decision it reaches, or the appointment of any judge;
(h) Interrogations are conducted in the absence of counsel;
(i) Foreign counsel are not permitted to enter Bangladesh;
(j) Members of the Government frequently breach the presumption of innocence;
(k) Members of the Government dictate timelines;
(l) Any criticism of the Tribunal and its procedures is threatened with contempt charges;
(m) Only side of the conflict will face prosecution;
(n) These are all capital cases.
It is important to note that on 6 February 2012, Miguel de la Lama, Secretary of the United Nations Working Group on Arbitrary Detention, published Opinion No. 66/2011 (Bangladesh) in which it concluded that the detention of the accused upon the order of the International Crimes Tribunal to be arbitrary and in breach of international law. In particular the UN Working Group stated:
“When the total or partial non-observance of the international norms relating to the right to a fair trial, established in the UDHR and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character.”
I sincerely hope that your article presents a balanced view of the current concerns experienced at the International Crimes Tribunal and that it risks setting a very dangerous precedent for countries that are State Parties to the Rome Statute of the International Criminal Court and are signatories to the International Covenant on Civil and Political Rights and a host of other international treaties.
Toby M. Cadman
Sarajevo, 13 April 2012