Appendix

Human Rights Watch has long supported efforts to deliver accountability for the atrocities committed during Bangladesh’s war of independence and to ensuring meaningful justice for victims and survivors through fair and transparent trials which meet the highest standards. Human Rights Watch takes no position on the guilt or innocence of any of the accused at the International Crimes Tribunal (ICT) of Bangladesh. Our concern is whether international fair trial standards are upheld.

The ICT was set up to try alleged war crimes and other grave violations of international humanitarian law during the 1971 war of independence from Pakistan. The war followed the victory of the East-Pakistan-based Awami League in the national elections. The Pakistani government, led by military ruler General Yahya Khan, refused to accept the results. On March 26, 1971, the government began Operation Searchlight, sending troops into East Pakistan to arrest Awami League leaders and put down protests. The Pakistani army and affiliated vigilante groups embarked on a massive wave of violence, including widespread rape. Estimates of the number of people killed range from 300,000 to 3 million. As many as 10 million people were reportedly displaced and fled to neighboring India. The Indian army intervened and joined resistance forces to defeat the Pakistani army after nine months of violence. The independent state of Bangladesh emerged in December 1971.

In response to this carnage, in 1972 the new government established special tribunals to try collaborators. In 1973, the parliament passed the International Crimes (Tribunals) Act. But, for political reasons, trials never occurred.

Bringing those responsible for the 1971 crimes to trial continues to have considerable popular support and was one of the main planks of the successful Awami League election campaign in 2008.

Background on Ghulam Azam

Ghulam Azam, 91, is one of the most senior members of the opposition Jamaat-e-Islami Party to have been tried by the ICT. Azam is the former chief of Jamaat. He was charged in March 2010 with six counts of conspiracy, planning, incitement, complicity, and murder and torture as crimes against humanity under the ICT Act. The judgment, handed down on July 15, 2013, found Azam guilty on all counts and sentenced him to 90 years in prison. He was spared the death penalty on account of his age. On August 12, 2013, the prosecution appealed the sentence, asking for Azam to be hanged.

Azam has been active in the Jamaat Party for many decades. He headed the East Pakistan branch of the party from 1969-1971 and was head of the party after independence from 1978 until his retirement in 2000. During the 1971 war, he and the Jamaat Party were opposed to Bangladesh’s independence. Azam was vocal in his opposition and was a member of the central Shanti or Peace Committee during the war. The Shanti Committee collaborated with the Pakistani army, acting both as local informants and as recruiters of fighters for various militant groups—including the Razakars, Al-Badr, and Al-shams—that supported the Pakistani army on the ground. These militant groups were responsible for serious human rights abuses during the war. Azam met senior members of the Pakistan government during the war, gave speeches exhorting people to resist the independence movement, and labelled pro-independence supporters as enemies of Islam. The prosecution alleged that Azam was responsible for the crimes outlined in the indictment as a result of his superior position in Jamaat, which gave him effective control over the various armed auxiliary units which supported the Pakistan army and whose members committed the actual crimes. The defense has denied that Azam had any control over armed units. It has argued that his opposition to an independent Bangladesh was not an indictable offense.

The Azam Trial

Many of the cases before the ICT, including the Azam trial, have been tainted by allegations of bias by the trial chambers towards the accused. Human Rights Watch has long drawn attention to credible allegations of improper interference against defense witnesses and defense counsel. In perhaps the most dramatic example, the trial chamber in another case essentially ignored the abduction of defense witness Shukhoranjan Bali from the gates of the courthouse, as detailed below.

Human Rights Watch is not in a position to say whether Ghulam Azam is or is not responsible for the crimes alleged in the indictment, but the process and evidence adduced render the trial fundamentally unfair under both Bangladeshi and international standards.

Below are key concerns that Human Rights Watch has identified with the ICT’s conduct of the Azam trial.

1.      Judges Improperly Conducted an Investigation on Behalf of the Prosecution

In an extraordinary break with practice in Bangladesh, the judges in the Azam case conducted their own investigation into the case to make up for deficiencies in the case presented by the prosecution, calling into serious question the impartiality of the court. Defense counsel were unaware of this investigation, and were thus unable to comment and challenge the evidence obtained by the judges. This constitutes a serious violation of article 14 of the International Covenant on Civil and Political Rights to which Bangladesh is a party.

During the oral presentation of the verdict in court on July 15, 2013, the presiding judge, AKM Fazle Kabir, referred to the paucity of evidence presented by the prosecution during the trial, saying “the prosecution did not provide us with much” and “the documents which the prosecution . . . submitted as evidence were not adequate.”

Verdicts in ICT cases have usually been delivered within a month after final statements by each party. The Azam verdict was unusual as the judgment was delivered several months later because, as Justice Kabir explained in his oral statement, the judges decided to conduct their own investigation in order to strengthen the prosecution’s case. Justice Kabir noted that the prosecution had submitted mainly newspaper articles which were not reliable as they could often be wrong, and therefore the judges conducted their own research to get “reference books.” Although they reached a verdict of guilty on all counts, Justice Kabir went on to say that they “were still not too satisfied with the documents [they themselves] were able to collect,” all the while conceding that the case rests largely on documentary evidence.

Bangladesh is a common law country and trials are conducted on an adversarial basis. The standard practice in such jurisdictions is that the judges reach verdicts on the basis of the evidence produced by the various parties to the case. According to practicing lawyers in Bangladesh, judges do not conduct their own investigations when they find that they are unable to reach a guilty verdict.

The admission by Justice Kabir suggests that the judges were either under pressure to produce guilty verdicts or else had presumed Azam’s guilt. After the ICT trial of Abdul Qader Mollah, for example, who was sentenced to life in prison rather than death, crowds of hundreds of thousands took to the streets across the country to demand that he be executed.

Prime Minister Sheikh Hasina was reported by media as saying she would talk to the judges to convince them to take the sentiments of the protesters into account in sentencing. The government also responded by proposing and passing amendments to the ICT law, reducing the appeal period from 90 to 60 days and for the first time allowing the prosecution to appeal sentences.

Law Minister Shafique Ahmed said the amendment aimed to ensure equal rights for both the government and the accused.

2.      Lack of Evidence to Establish Guilt Beyond a Reasonable Doubt

Human Rights Watch has no independent information on the role that Azam may or may not have played in the violence in 1971. However, the prosecution neither alleged nor offered any evidence showing Azam personally committed or ordered violence. The verdict issued by the court came to the same conclusion: “There are no allegations that he was physically present at any crime scene. And secondly, there are no allegations that he actively directed the commission of war crimes.”

The trial chamber concluded in its verdict that the bulk of the charges against Azam depended on circumstantial evidence, all of which was either documentary or hearsay, and effectively admitted that the evidence presented was not adequate for a conviction. The defense was unable to challenge any of the facts on which the court relied as a result of its own investigations, which took place after the court closed the presentation of evidence in the trial. The verdict relies, for example, on several books not presented as evidence during the trial in its finding that crimes against humanity, genocide, and other war crimes were committed during the war. The defense was similarly unable to comment on the judges’ reliance on other documentary evidence regarding Azam’s role in the crimes of militia units.

The vast majority of documentary evidence was contemporaneous newspaper accounts whose veracity could not be determined and whose reliability is subject to question, particularly given the strict censorship laws in effect at the time. The chief prosecution witness who tendered these documents, the investigating officer, acknowledged the pervasive censorship in effect at that time and admitted during cross-examination that he was unable to determine the veracity of the newspaper accounts. This was confirmed by the first prosecution witness who relied, in large part, on documentary evidence during his testimony. Reliance on unverified newspaper accounts to establish facts essential to proving Azam’s superior responsibility over the various armed groups opposed to an independent Bangladesh raises serious fair trial concerns.

As we have also previously noted, the Azam judgment appears to suggest that there is no need to prove a connection between the accused and the charged offense. Different parts of the judgment make this point, but it is made most definitively in paragraph 288 in response to an argument by the defense that the prosecution had failed to “identify any specific offence…commited pursuant to any action of the accused.” The trial judgment states, “We hold that ‘nexus’ is not required to prove genocide and widespread killing when attack was directed against unarmed civilian population.” This statement suggests that the trial chamber, which admitted that the prosecution failed to provide evidence linking the accused directly to any crime and that the guilty verdict was arrived at through circumstantial evidence alone, found Azam guilty of genocide and crimes against humanity without finding a connection between him and the crimes.

3.      Collusion and Bias Among Prosecutors and Judges

Human Rights Watch notes that the Azam trial was among the cases discussed by an ICT judge, prosecutors, members of the executive branch and an external consultant in leaked communications published by The Economist in December 2012. The communications addressed many topics, but the most troubling among them provide strong evidence of collusion between ICT judges, prosecutors, officials in government office, and an external consultant.

Many of the leaked conversations revealed that the chair of the trial chamber, Justice Nizamul Huq, and the consultant essentially were guiding the prosecution in making the case against Azam as well as the accused in other cases. It is clear from the communications that there were prior discussions about what charges to bring against Azam. A document attached to an email sent to Huq by the consultant, sets out the strategy to be followed by the prosecution in making their case against Azam.

The leaked communications contain several conversations in which Huq and the consultant discuss not only who the prosecution should list as witnesses, but also what the content of their testimonies should be. In one conversation, for example, the consultant tells Huq that the prosecutor is worried about a particular witness and that therefore the witness should not be allowed to talk about the Pakistani army or the war for fear that the witness might ascribe guilt to the Pakistani army and shift culpability away from Azam. In another conversation, Huq instructs the consultant to tell the prosecutor how to conduct his examination of the prosecution’s investigating officer, saying that the prosecutor was not doing a good job. There are several discussions about the importance of the Azam trial, and whether it can be expedited so that it would be the first judgment handed down by the ICT given the pressure from the government to hand down a verdict by mid-December 2012. Reading the conversations as a whole, it is abundantly clear that the chair of the tribunal had regular meetings and discussions with the prosecutors in the Azam case.

Human Rights Watch had several meetings with Huq over a two-year period, and observed first-hand instances of close collaboration between Huq and the prosecutors. In one meeting, Huq referred to the prosecution as “us” throughout the meeting. In another meeting, Huq instructed both the registrar and a prosecutor to sit in and had them confirm to us nearly everything he said.

Although Chairman Huq effectively admitted in court that the leaked conversations published by The Economist were real and resigned shortly thereafter , the ICT has refused to examine the communications or follow-up on the collusion they revealed, saying that the way they were obtained was illegal and therefore the content of the intercepts could not be admitted into evidence. At a minimum, the ICT should have ordered an investigation into the wrongdoing. This the ICT has not done: instead, the tribunal authorities simply disregarded this irrefutable evidence of judicial bias.

The Law Minister, Shafique Ahmed, stated that Huq’s resignation did not affect the proceedings in any of the ICT cases. The tapes suggest that Ahmed and the State Minister for Law have interfered with the independence of the judiciary at the ICT. In one conversation, for example, Huq spoke about how Ahmed summoned Judge Ahmed for a meeting and asked him to resign and how Huq convinced Ahmed to claim he was resigning on medical grounds. In another conversation, Huq spoke to the consultant about the pressure he was under from the Law Minister to make the Azam case the first judgment from the ICT. The consultant confirmed that he had received a similar message from Ahmed.

Human Rights Watch believes that the impropriety revealed by The Economist necessitates a new trial for Azam and all other accused whose cases were discussed by Huq.

4.      Failure to Take Steps to Protect Defense Witnesses

In the Azam case, as in other cases before the ICT, the defense has alleged that members of the prosecution and government security agents intimidated defense witnesses, including by threatening their arrest should they cooperate with the defense.

The court initially allowed the defense to call 12 witnesses. The prosecution was allowed to call 16 witnesses. The court cited the practice of international tribunals to justify its limits on the number of witnesses. However, the court ultimately heard the evidence of only one defense witness, closing down the case when defense counsel asked for a week’s adjournment to address what it said were concerns with the security of the remaining witnesses.

Defense witnesses have compelling reasons to believe that they may not be safe before, during, or after their testimony at the ICT. Defense witnesses, many of whom live in remote villages, have reported harassment for cooperating with defense counsel. Several witnesses have been threatened with criminal charges. At least one researcher working for the defense has had to go into hiding due to threats. A defense witness in the Azam case refused to testify claiming that the prosecution’s investigating officer told him he would face war crimes charges if he testified. No investigation was ordered into this allegation.

In the most dramatic case, witness Shukhoranjan Bali was allegedly abducted from the gates of the courthouse in November 2012 as he was coming to give evidence in the trial of another accused. Immediately after the alleged abduction, defense lawyers told the trial chamber what had happened. The court ordered the prosecution, not the police, to investigate the claim and accepted the prosecution’s response a few hours later that the entire episode had been fabricated by the defense. Bali has since confirmed to an independent lawyer that he was abducted and then taken by Bangladesh security forces over the border into India, where he was arrested for illegal entry. The court has done nothing to investigate or hold accountable those responsible for the abduction and this gross interference with the administration of justice.

The abduction of Bali and threats against other defense witnesses appear to have had a direct impact on the Azam trial. As noted above, while the defense initially indicated it would call 12 witnesses, in the end it called only one, citing security concerns.

On December 9 the defense asked for a one week adjournment to address these concerns, but the court refused to give the defense any more time and ordered the case closed after the testimony of the son of the accused, the sole defense witness. The court did not issue any orders for witness protection or safe passage, nor did it order any investigation into the threats and other forms of witness intimidation alleged by the defense. The trial chamber had also previously refused to issue summonses for two international expert witnesses called by the defense who needed visas to enter Bangladesh.

The ICT has failed to meet its obligation to protect witnesses. Human Rights Watch notes that although the court ordered a safe house to be set up, the prosecution team told us the safe house was under its control. No separate arrangements were made for defense witnesses who believed they would be at risk if their whereabouts were known to the prosecution. Both the prosecution and judges told Human Rights Watch that the allegations of intimidation are outright fabrications by the defense and, as noted above in the Bali case, they simply denied the abduction ever happened.

5.      Changes in Trial Court Panel

Frequent changes to the three-judge panel in the Azam trial mean that only one judge heard the entirety of the evidence.

The first panel in the Azam case, formed in March 2010, consisted of Chairman Justice Nizamul Huq, Judge Ahmed, and Judge Kabir. The trial started in June 2012 with opening statements from the two parties.

Judge Ahmed resigned unexpectedly in August 2012 and was replaced by Judge Jahangir, who heard the last two months of the prosecution’s case but missed the first two witnesses. The court’s judgment relied heavily on the testimony of the first witness, Moontassir Uddin Khan Mamun, a history professor at Dhaka University.

Judge Kabir left the Azam trial in March 2012, before it had even started, when he was transferred to chair the second tribunal at the ICT.

Judge Kabir was replaced by Judge Anwarul Huq, who was the only judge on the panel to hear the entirety of the case against the accused.

On December 11, 2012, as already noted, Nizamul Huq resigned after audio tapes and email correspondence were published by the Economist revealing he had colluded with the prosecution.

Justice Kabir was reassigned to the case the following day, replacing Huq. When closing arguments in the Azam trial finished in April 2013, Justice Kabir had heard only the last few months of the case, which amounted to one defense witness and none of the prosecution witnesses.

It is critical for judges to hear all the evidence in a case and to be in a position to judge the credibility of the witnesses, particularly in a trial involving 40-year-old evidence and complex legal issues. The ICT has failed on this front as well.