Statements by Barrister Abdur Razzaq on UN Ruling on Bangladesh War Crimes Tribunal

16 Feb

 

Statements by Barrister Abdur Razzaq on UN Ruling on Bangladesh War Crimes Tribunal

 

Barrister Abdur Razzaq, Senior Advocate of Bangladesh Supreme Court & Chief Defence Counsel, sitting next to him Barrister Rafiqul Islam Mian, President of Nationalist Lawyes’ Association and Advocate Tajul Islam, Defence Counsel Date: 15th February 2012.  

The press conference by the senior members of the Supreme Court Bar

&

ICT Defence Team

Dear journalist friends

Assalamu Alaikum Warahmatullah.

We are grateful to you for taking the trouble of attending this press conference.

1.    We are all aware that ever since the establishment of the War Crimes Tribunal under the International Crimes (Tribunal) Act, 1973 the international community has criticised the law as falling far below not only the international standard, but also Bangladesh’s commitment to international standard. This criticism has been made by international human rights organisations, international NGOs, the US Ambassador-at-Large on War Crimes and also by very senior and renowned international crimes experts and constitutional experts of international repute.

2.    The International Bar Association (IBA), established in 1947, is the world’s leading organisation of international legal practitioners, Bar associations and law societies. Upon a request being made by the UK Parliament Human Rights Group to the War Crimes Committee of IBA for an opinion on the consistency of ICTA 1973 with international standards, the IBA in its opinion dated 29th December 2009, expressed its concern with respect to the rights protecting the interest of the individuals on trial. In IBA’s opinion, many a provision of the International Covenant on Civil and Political Rights, which Bangladesh had ratified, have not been complied with. Therefore, the Tribunal would be open to criticism. In conclusion, IBA made 14 recommendations which have not been complied with by the Bangladesh Government.

3.     By a letter dated 15th March 2011 written to the Honourable Law Minister, the International Centre for Transitional Justice [ICTJ] based in New York, criticised the 1973 Act and asked the Government to ensure right to a fair trial, due process, safeguards against arbitrary detention and principle of equality of arms. By a letter dated 21st March 2011, the US Ambassador-at-Large on War Crimes Stephen J Rapp written jointly to the Honourable Foreign Minister and the Honourable Law Minister asked the Bangladesh Government to update the law to bring it to international standard, define the elements of crime, to protect the rights of the accused persons, to create a second chamber in the Tribunal to hear appeals of interlocutory matters, and allow participation of foreign Counsels. By a letter dated 21st June 2011 written to the Honourable Chairman of the ICT, the Amnesty International expressed their concern at the lack of definition of crimes and their inconsistency with international laws, denial of guarantees of the right to fair trial as recognised in international law, and also the denial of the fundamental rights of the accused guaranteed under the Constitution of Bangladesh.

4.    On 27th July 2011, in his meeting with the Honourable Law Minister in London, Lord Eric Avebury a very influential member of the British House of Lords expressed his concerns on the refusal of the Government of Bangladesh to allow foreign counsel to appear before the Tribunal, the fact that the Chairman of the Tribunal participated in the People’s Enquiry Commission in 1992, and the failure to amend the 1973 Act and the Constitution of Bangladesh. Similar concerns were expressed by the members of the international community in a seminar on ICT organised in Washington DC on 19th May 2011 by the American Society of International Law (ASIL).

5.    Besides, on 21st December 2009, Honourable Michael J Beloff QC, a very senior member of the English Bar, in his detailed advice, criticised the ICT Act 1973. Similar criticisms were made by Mr Soli J Sorabjee, a very senior advocate and former Attorney General of India, in his opinion dated 19th May 2010. Professor William A Schabas OC MRIA, Professor of Human Rights Law, National University of Ireland Galway, gave a similar opinion on 24th March 2011. Another opinion was jointly given by Mr. Gregor Gy-Smith and Ms. Collee Rohan on 7th April 2011. Mr Gy-Smith is a prominent practitioner of international criminal law. Formerly, he was President of the Association of Defence Council for the International Court of former Yugoslavia [ICTY] and currently acting as Co-President of the Association of Defence Council practising before the ICTY. Ms Rohan is also a prominent practitioner of international criminal law. She appeared as Defence Counsel before the ICC, ICTY and ICTR. She is the founding member of the International Criminal Law Bureau.

6.    On 13 October 2010, Mr Steven Kay QC, who was the lead Counsel defending Slovodan Milosevic (the former Serbian leader) in the ICC and who was also the Secretary of the Criminal Bar Association of England and Wales, in a very detailed opinion criticised the 1973 Act as following far below international standard. There are other opinions as well given by reputed national and international lawyers. The Bangladesh Government could not care less. The trial is proceeding in full swing despite severe international criticisms.

7.    In this background, on 23rd November 2011 the United Nations Working Group on Arbitrary Detention, provided its opinion on the legality of the detention of the persons under ICTA and also commented generally on the 1973 Act and the standard of trial. The UN Working Group has found “significant restrictions” on the defendants’ (detainees’) access to legal assistance and their “unimpeded access to evidence”. The UN Working Group is of the opinion that in pretrial detention, the Government of Bangladesh must comply with international obligations. They are also of the opinion that the procedure of the Tribunal “must comply with the relevant obligations of Bangladesh under international law”. The Working Group has noted that Bangladesh has ratified the Rome Statute of the ICC which provides a model for war crimes trial.

8.    In its opinion, the UN Working Group has also emphasized that in international law ‘detention prior to conviction should be an exception rather than a rule.’ Yet this well recognised principle of international law has been violated. The Tribunal has detained 6 of the 8 detainees for over one year without framing charges against them. Although, none of the detainees have shown  any inclination to  abscond  or tamper with evidence prior to their arrest, they have been  detained without assigning any legal reason.  As pointed out by the UN Working Group this is a violation of Article 9 of the Universal Declaration of Human Rights (“UDHR”) and Article 9 of the International Covenant on Civil and Political Rights (“ICCPR”).

9.    The UN Working Group has also noted that the ‘Government has not submitted any information justifying the refusal to release [the detainees] on bail..’.  The UN Working Group has therefore concluded that the deprivation of the liberty of the detainees  is arbitrary and in violation of the UDHR and the ICCPR and has called upon the Government to take necessary steps to ensure compliance with international law.

10.We, the Senior members of the Supreme Court Bar Association and members of the International Crimes Tribunal Defence Team note with dismay the cavalier attitude with which the Government has been dealing with the opinion of the UN Working Group. The Government would do well to remind itself that the opinion of the UN Working Group forms part of the corpus of international law.  It is unfortunate that the Tribunal’s first recognition in international law should be in negative terms. It is also regrettable that the case of the Bangladesh Tribunal has now become an international legal precedent in the field of arbitrary detention. The Working Group has specifically opined as follows:

“The deprivation of liberty of Messrs. Motiur Rahman Nizami, Abdul Quader Molla, Mohammad Kamaruzzaman, Ali Hasan Mohammed Mujahid, Allama Delewar Hossain Sayedee, and Salhuddin Quader Chowdhury is arbitrary, and constitutes a breach of Article 9 of the UDHR and Article 9 of the ICCPR,…”

11.We hope that the Government will remedy the situation and ensure compliance with all recognised norms of international law. We therefore call upon the Government to ensure that the opinion of the UN Working Group is implemented without delay.

Ladies and gentlemen of the press, thank you very much for your patient hearing.

Click Below for the Full Opinion and Bangladesh Government response.

UNHRC

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