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Justice and Accountability Requires More Than Mere Words

Bangladesh

Recently an article was published by Seema Sirohi in the Economic Times. The article, entitled “Why Bangladesh is Under the Gun after Recent Terrorist Attack” sought to advance a number of pertinent questions relating to the war crimes trials in Dhaka and highlighted a number of critical arguments that require due consideration.

Forgetting for a moment that the tone and direction of the article was entirely misplaced and comes across as the very thing that it seeks to criticize – a political diatribe – it does present an interesting argument, namely whether it is appropriate to criticize the war crimes trials in Dhaka and the forum in which criticisms may be levelled.

I have become used to defending the position that I advocate, and to be clear, that position is not whether seeking accountability is legitimate, that question is beyond debate, the position is very clearly whether the International Crimes Tribunal meets universally recognized standards of fair trial and whether the process is legitimate. There can be no suggestion that I advocate for impunity that goes against everything that I stand for. The principle argument in this whole process, and the request that I have made to the United Nations, European Union, US and UK Governments, is that there needs to be an independent review of the process and the Tribunal should fall under international supervision.

Looking for a moment at why I believe that it is quite simple. The War of Liberation in 1971 was one of the most brutal conflicts in modern history and affected almost the entire population in what is now Bangladesh. The scale of the conflict requires that those persons who bear criminal responsibility, on all sides of the conflict, be held accountable. It is also critical that that process stands up to scrutiny as being independent, impartial and fair.

This is particularly important as the judgments of the court will be writing history and be setting the framework for peace and reconciliation. It matters not that it is being pursued after more than four decades if it is being done right and being done with justice in mind. As Justice Jackson once said at the Nuremberg Tribunal “If you are determined to execute a man in any case there is no occasion for a trial. The world yields no respect to courts that are merely organized to convict.” He went on to state that “We must never forget that the record on which we judge these defendants today, is the record upon which history will judge us tomorrow. To pass these defendants a poised chalice is to put it to our lips as well. We must summon such detachment and intellectual integrity to our task, that this trial will commend itself to posterity as fulfilling humanity’s aspiration to do justice.” That is why the holding of such trials are so important and the responsibility for doing so is so great.

The author starts her well-articulated piece by drawing attention to the recent horrific terrorist attack in the diplomatic belt of Dhaka in which more than 20 people were killed. Readers of the article may well have cause to question the motives behind making such a connection. There is no suggestion, or at least any credible basis for believing, that those on trial or the opposition political parties that they belong to as having any involvement in this harrowing attack or indeed any of the recent brutal attacks carried out by religious fundamentalists in Bangladesh, targeting secular writers and members of the LGBT community in Bangladesh. These attacks are believed to have been carried out by Daesh or Al Qaida. Such heinous acts of terror must be condemned in the strongest terms and the perpetrators brought promptly to justice.

The author attempts to discredit the Jamaat-e-Islami political party by associating it with these terrible events and claiming that “…slick American and British lobbyists to discredit Hasina's efforts to battle radicalism and punish perpetrators of war crimes committed during the 1971 struggle for independence from Pakistan.” She goes on to state that “these lobbyists are essentially trying to convince the US Congress and the State Department that the trials of alleged war criminals are unfair and don't meet international standards.”

Let us be absolutely be clear, there is no attempt to discredit the Bangladesh Government’s attempts to counter radicalism. However, convincing US policy makers, and for that matter the UN, EU and UK, that the war crimes trials do not meet international standards is a matter in which I have been engaged over the past 5 years. Again, at the risk of sounding repetitive, advocating for one’s clients to receive a fair trial by an independent and impartial tribunal of law, particularly when they face execution, is a legitimate request and no amount of ‘slickness’ is going to convince policy makers unless the concerns are legitimate and credible.

I represent persons accused of war crimes, crimes against humanity and genocide. My role is to ensure they are able to put forward an effective defence to the charges and ensure that the process is fair. However, for the avoidance of doubt, I do not consider myself impartial. I am not required to be. I am advocating on behalf of the accused and therefore one would expect their lawyer to fight without fear or favour. Nevertheless, the argument is made credible when one considers the wealth of independent research into the trial process.

One could not imply, with any level of credibility, that the United Nations; international human rights groups; members of US Congress and Senate; member of the UK House of Lords and parliamentarians; international legal specialists; and appointed experts such as the former US Ambassador for Global Criminal Justice Stephen Rapp are all merely ‘slick lobbyists’. They offer credible criticisms of the process and concerns that it does not come close to universally recognised standards. It is their concerns that I present on a global platform.

Over the past 5 years I have become quite used to be referred to as a ‘lobbyist’. I am quite used to journalists and the authors of op-eds seeking to portray this ‘moniker’ in a negative light, and specifically ignore the fact that I am a Barrister and that I have been instructed to provide legal advice to my clients. Ms. Sirohi like many before her attack the lengths that I have gone to protect my clients. I fight fearlessly for all my clients and use all appropriate means at my disposal.

What is a new development however, and one that I condemn in the strongest of terms, is the suggestion of Ms. Sirohi in her article “Why Bangladesh is under the gun after recent terrorist attack”, that those who have represented persons before the Tribunal, and those that have lobbied on their behalf have done so, at the behest of the patrons of extremists? This is merely a futile attempt to further besmirch the professionalism of those individuals instructed, myself included, why else would she choose to raise South Africa’s abhorrent and criminal apartheid regime.

It has absolutely no relevance to the issue at hand, and has merely been raised for effect rather than substance. The author could have also cited the fact that the Government of Bangladesh has its own ‘government advocacy’ and ‘public relations’ representation in Washington DC, as does a number of legitimate governments recognising that effective representation on Capitol Hill is a necessary part of ‘doing business’.

I agreed to be interviewed by Ms. Sirohi for her article. She e-mailed a number of questions, all of which were responded to fully, and yet it is interesting that she has chosen to ignore the majority of what has been said, and instead seeks to use quotes selectively that allow her to continue to pursue the theme of ‘lobbyist’; even going so far as to suggest that I prefer “the label of a human rights lawyer”. Contrary to the suggestion let me say this. I have no objection to the lawyering and lobbying handle, but I do object when it is used to suggest that I am less than honest in my representations.

Again, at the risk of sounding repetitive, advocating for one’s clients to receive a fair trial by an independent and impartial tribunal of law, particularly when they face execution, is a legitimate request and no amount of ‘slickness’ is going to convince policy makers unless the concerns are legitimate and credible.
So, without the propaganda, without the hyperbole, and without the sensationalism, let us consider the facts of the situation.

Sheikh Hasina, and the wider Bangladesh, faces a domestic terrorism problem. There have been numerous attacks, where innocent civilians have been murdered for no other reason that expressing their democratic freedoms. These attacks have no place in any democratic society. Hasina’s response however has been muted to say the least, and it is here where issue is being taken. Various extremist groups, including Daesh have claimed responsibility for the attacks and yet the Government has refused to accept this and merely stated that such groups do not exist in Bangladesh.

Thereafter, rather than condemning the attacks, she makes comments that suggest those who criticise Islam deserve to be attacked referring to them as ‘filth’. Hardly the reaction one would expect from the leader of a secular nation. Further, there appears to be no progress on any police investigation into the offences, other than the arrest en masse of reportedly 12,000 citizens. These arrests raise two issues; in the first instance, if there are really 12,000 citizens who are suspected of involvement in terrorist activities, one must question why these individuals have not been previously arrested, and secondly, given it is unlikely that such a number of citizens are involved in such activities, the actions are in reality, a crackdown on the opposition. Regardless of the reasoning, it is difficult to see how such action can be justified.

Even now, the Government refuses to take action against its own security services who have been the subject of documented and credible allegations of enforced disappearance, extra-judicial killing, and torture. Why is there this refusal one must ask, if the actions are not supported by the State. These are not the words of any lawyer or lobbyist, but comments from other, independent monitoring agencies, unless one subscribes to the ludicrous position adopted by the Bangladesh Government that Human Rights Watch, Amnesty International and the New York Times et al are part of an anti-Government conspiracy.

The domestic position in Bangladesh is at crisis point and action must be taken, that includes action to address the cause of the recent upsurge in terrorism, as well as taking action against the terrorists themselves.

The instability in Bangladesh and the complete breakdown in law and order has led to a rise in extremism. I have said since 2011 that there is serious risk of this occurring. I do not consider that the rise in extremism is directly related to the war crimes trials. I consider that it is global phenomena that many countries face. However, it is more systemic where there is a shrinking of democratic space and a wholesale abandoning of the rule of law.

To her credit Ms. Sirohi makes some attempt to address the criticism of the Tribunal, but remains selective in the points that she raises. She does not raise the lack of due process; she does not raise the fact that the usual fair trial guarantees provided for by the Bangladesh Constitution are explicitly removed for those who appear before the Tribunal. She also fails to mention that changes to the judiciary resulted in verdicts being returned without any of the presiding judges hearing the full case, is this really an appropriate way in which to try an individual who face the death penalty?

Ms. Sirohi quite rightly refers to the ‘Skypegate’ scandal although she refers to it as ‘inappropriate consultation’ between a judge and a third party. In fact, when one looks at what Skypegate disclosed it is quite clear that it was far more than ‘inappropriate consultation’ – it was perverting the course of justice. The ‘consultations’ involved judges, prosecutors, members of the government, activists, prosecution witnesses and tribunal staff. There is a gulf between ‘inappropriate consultations’ and a criminal conspiracy to ‘pervert the course of justice’, but the evidence is there for all to see. It is only through willful blindness that one is able to see the wood for the trees.

The list can go on and on, but to examine each instance would render this response too voluminous to be of any use. The fact remains however, that when we strip away the agenda of some, the trials before the Tribunal are not fair and this is the point upon which I have written and advocated over the past 5 years.

For clarity I will say this once more; at no time have I, nor do I, suggest that where there is credible evidence to suggest an individual’s involvement in crimes during the 1971 conflict, that individual should escape investigation, and/or prosecution. To maintain such a position would be nonsensical. All suspects ought to be investigated, regardless of their political loyalties either at the time or now.

The sole issue is that of fairness, the trials are not fair, Bangladesh – and India for that matter – knows they are not fair, and yet they continue regardless, and thus, society continues to fracture at apace.

Ms. Sirohi declares that “India has hinted broadly that it would back Bangladesh if any attempt was made to undermine the ICT and take the matter to an international or multilateral forum.” That is an interesting and highly revealing statement to make. Why would India be so concerned with the matter being taken before an international forum.

It might be that it would reveal quite how unprincipled the whole process was or that it might expose India’s role in the conflict. It is quite clear that, whether justified or not, India intervened in a civil war thus making it an international armed conflict. In very much the same way as that the US and UK is facing criticism for illegally invading Iraq, India could face the same criticism for its role in 1971, acting without a UN Security Council resolution.

It is, in my view, essential that the matter is taken up before an international forum.

The author refers to the political and religious ideology of my clients. It is claimed that they seek to undermine freedom of expression and have targeted minority groups. The author also criticizes the US treatment of Jamaat as a democratic party.

It is my view, and like the author I am entitled to my view and open to be challenged where I may be wrong, that Jamaat is a democratic political party. They are a conservative religious party and therefore have strong religious views in a majority Muslim state. However, there is nothing inconsistent with faith based views and the protection of fundamental freedoms. In its most recent statement on its human rights policy it declared that core principles such as freedom of expression and freedom of speech are essential protections in any democratic system and that they must be done within the confines of accepted and established principles of law.

Concerning attacks on minority groups, it is noted that these matters have been fully raised in the Communication to the Prosecutor at the International Criminal Court, ironically something that the author criticizes as part of a political campaign.

The author refers to the Government having its own lobbyist to “…present its point of view” – namely the Bangladesh Supreme Court. Clearly, one would expect the Supreme Court to act as an independent organ of the State not to serve as a lobbying firm for the Government. This point is well made by the author and one of the few with which I happen to agree. It is precisely for this reason that an independent review on an international platform is now necessary.

The author concludes her piece by suggesting that information provided by a lobbyist with a long list of rogue clients is not credible referring to former President Pervez Musharraf of Pakistan, General Karenzi Karake of Rwanda and the Government of Maldives. It would appear that the author’s view is that a lawyer should be judged on the clients he or she represents. It should be remembered however that lawyers represent clients not causes. I have represented a host of clients. I have acted for both the prosecution (Bosnia, UK) and the defence (Kenya, Bangladesh). I act for victims of crimes (Syria, Egypt, Palestine) and I advise Governments. Lawyers are not political activists and any credible judicial system is built on the strength of the lawyers that appear before it. Lawyers that are politically affiliated and pursue a political objective do not contribute a credible judicial process.

The author stated that the Government is being “out-spent and out-written…by…lobbyists who cloak their arguments in high verbiage of law and human rights…” and that “If terrorism is to be defeated, the first order of business should be clarity on who is playing what game and why.” The reality is that the Government is paying the price for its policies, its disregard for democratic values and its undermining and circumventing the rule of law. That is not verbiage and nothing is being cloaked. That is the reality.


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