Trying war crimes in Bangladesh - The trial of the birth of a nation

This chairman of Bangladesh’s International Crimes Tribunal resigned. We explain the background to his action, our role in the story, and what it all means for his country’s search for justice

BANGLADESH suffered a violent birth. In the last days of 1971 the country then called East Pakistan was engulfed by torture, rape, mass-killing and other acts of genocide. The main perpetrators were Pakistani troops bent on preventing secession from “West Pakistan”. But the army had the support of many of East Pakistan’s fundamentalist groups, including Jamaat-e-Islami, which remains Bangladesh’s largest Islamic party. Estimates of the death toll vary from around 300,000 to the current government’s reckoning of 3m—one in 20 of the population at that time.

In 2010 Bangladesh established a tribunal to try those accused of war crimes. It is called the International Crimes Tribunal, though it is not an international court in the sense of being founded on international law. Rather it is a national court, based on a Bangladeshi statute passed in 1973 and amended in 2009 and 2012. It was very late to begin the search for justice, for the accused as well as for victims. But war crimes are subject to no statute of limitation.

The main perpetrators are not in the dock, since they are either dead or living in Pakistan. But some suspects are still leading prominent lives in Bangladesh. Ten people have been arrested and charged with offences ranging from individual acts of rape and murder to the ordering of mass executions. This week the first case—that of Delwar Hossain Sayeedi, a member of parliament in 1996-2008 and a leader of Jamaat—seemed to be moving towards its fatal conclusion. His conviction, and presumed death sentence, was widely expected in mid-December.

At the last moment, however, the presiding judge, Mohammed Nizamul Huq, resigned as chairman of the tribunal, following questions put to him by The Economist and the publication in Bangladesh of private e-mails which cast doubt upon his role and upon the court proceedings. Recordings of him speaking by telephone were also available on YouTube. The Economist has seen these, and other materials, and has been investigating their accuracy and significance. This week, we publish the results of those investigations.

The e-mails and phone conversations we have seen raise profound questions about the trial. The material suggests the government tried to put pressure on Mr Nizamul, albeit he seems to have resisted it. It seems to show he worked improperly with a lawyer based in Brussels, and that the lawyer co-operated with the prosecution—raising questions about conflicts of interest. And in Mr Sayeedi’s case it points to the possibility that, even before the court had finished hearing testimony from the defence witnesses, Mr Nizamul was already expecting a guilty verdict.

These concerns are so serious that there is a risk not only of a miscarriage of justice affecting the individual defendants, but also that the wrongs which Bangladesh has already suffered will be aggravated by the flawed process of the tribunal. That would not heal the country’s wounds, but deepen them.

As well as being about the birth of the nation, the war-crimes trial also has enormous significance to today’s politics in Bangladesh. In the general election of 2008 the current prime minister, Sheikh Hasina, campaigned on a promise to set up the tribunal. The men in the dock include leaders or former leaders of Jamaat, which is allied with the main opposition group, the Bangladesh Nationalist Party (BNP), led by Sheikh Hasina’s bitter foe, Khaleda Zia. Since Mrs Zia cannot win power without support from Jamaat, many people doubt that she would continue with the trials should she become prime minister. She has already condemned them as a “mockery”. Backers of the trials therefore wanted them wrapped up before the next general election, which is due around the end of 2013.

The 1973 act says that “if, in the course of the trial, any one of the members of the Tribunal is, for any reason, unable to attend to any sitting thereof, the trial may continue before the other members.” The evidence we have seen, though, suggests that a full reconsideration of proceedings may now be required.

“Absolutely crazy for a judgment”

 Nizamul and Ahmed Ziauddin, the Brussels-based lawyer of Bangladeshi origin, the judge refers to the government as “absolutely crazy for a judgment. The government has gone totally mad. They have gone completely mad, I am telling you. They want a judgment by 16th December...it’s as simple as that.” December 16th, known as Victory Day in Bangladesh, is the anniversary of the surrender by Pakistani forces in the war of independence.%The first part of that evidence raises questions about the government’s behaviour. It suggests the tribunal came under political pressure to speed proceedings up, even though Bangladesh guarantees the independence of the judiciary. In a conversation of October 14th, between Mr Nizamul and Ahmed Ziauddin, the Brussels-based lawyer of Bangladeshi origin, the judge refers to the government as “absolutely crazy for a judgment. The government has gone totally mad. They have gone completely mad, I am telling you. They want a judgment by 16th December...it’s as simple as that.” December 16th, known as Victory Day in Bangladesh, is the anniversary of the surrender by Pakistani forces in the war of independence.

So determined was the government to hurry matters along that Mr Nizamul and Mr Ziauddin worried that ministers were pushing too hard. “We have to make them understand that it [the verdict] is not a product that you just ask for it and it will be delivered from the machine,” Mr Ziauddin said later in that same conversation.“But we are not in a position to make them understand. Even then we have to try, we have to speak to them.”

It is one thing to push for an early verdict, another to attempt to intervene in the trial to secure one. That seems to have happened, too. In a conversation the next day, Mr Nizamul described how a member of the government “came to visit me this evening. He asked me to pass this verdict fast. I told him ‘how can I do that?’... He said, ‘Try as quick as you can.’”

In a phone interview on 5th December, the judge denied that he had come under political pressure and declared he was master of his own court. “We do proceed according to our own wish,” he said. “We are following our own proceeding according to our own system and own choice.”

Elsewhere in the material we were shown, however, it is Mr Nizamul’s independence that is in question. He is a Supreme Court judge and remains one after resigning as chairman of the tribunal. (A tribunal has between three and five judges; there is no jury.) Mr Ziauddin, the man he is communicating with, is an expatriate Bangladeshi who is an academic specialising in international law. He is the director of the Bangladesh Centre for Genocide Studies in Belgium. The two men have known each other for 25 years, as they were human-rights campaigners and Mr Ziauddin’s late brother had been a student friend of the judge.

The adviser

In the material shown to us, Mr Ziauddin emerges as an important figure in the trial—offering advice, urging Mr Nizamul to do this or that, and supplying him with news and drafts of court documents. In general, judges are required to be extremely careful about discussing details of cases with third parties because that could lead to bias or the impression that they have come under the influence of someone who has nothing to do with the proceedings. This requirement is embodied in Bangladesh’s constitution, which says “the chief justice and other judges shall be independent in the exercise of their judicial functions.” The judges’ code of conduct confirms that “an independent judiciary is indispensable to the justice system in Bangladesh.”

Perhaps, however, there are extenuating circumstances in this particular case. Though the tribunal is a domestic court, its officers seem eager to measure up to the standards set by international war-crimes tribunals. The tribunal is short of resources. It might be understandable if Mr Nizamul quietly talked to an international expert in order to improve the quality of the tribunal’s work.

That is what Mr Nizamul argued. The order of December 6th explains that the tribunal is based on “new law”, so the judges needed to “take the assistance of researchers from inside and outside the country”. It names Mr Ziauddin as just such an expert. “During the proceedings of the trial and order the Chairman also took assistance from him,” it says.

Speaking to The Economist on December 4th, Mr Ziauddin said something similar. “It’s up to judges to decide where they are going to get research support or other support they need. They are quite entitled to do it. The more so when they really don’t have that research backup [in Bangladesh]. [They ask for help] if they feel if there are people more informed about the issue, especially where [international law] is so new in Bangladesh...I’m not really advising him, but if there is a question then I try to respond.”

Yet the characterisation in the order and from Mr Ziauddin contradicts what the judge told us in an interview on December 5th. On the evening before issuing the order, Mr Nizamul admitted that he and Mr Ziauddin talk but denied that the expatriate had a part in preparing documents. “As judges, we cannot take help from third person and outsiders,” he said. Asked whether they sometimes exchange e-mails about the tribunal, he says “No, no, no, regarding tribunal...no talks regarding the judgment or regarding the proceedings, no.” Later he said, “A Supreme Court judge, we do not talk even with our wife regarding the tribunal.”

In his interview on the previous day, Mr Ziauddin also took the view that judges must be careful about speaking to third parties during a trial. He told us that he has “No official standing [with the court]. No relationship whatsoever.” He can send the judge messages if he wants—but “generally though I don’t,” he said, “he’s a judge after all.”

Of course, judges can take advice. But any adviser is usually given an official role, known to prosecution and defence. Also as a general rule, advisers tend to stick to their areas of expertise—giving advice on knotty points of law, for example.

Mr Ziauddin does not seem to meet these requirements. Before the tribunal’s order on 6th December his role had not been disclosed to the court or the public. And his advice seems to go beyond particular points of law to include, for example, the drafting of charges. The 17 hours of conversations available to The Economist took place between August 28th and October 20th this year—the equivalent of almost 20 minutes every day. The two men also exchanged more than 230 e-mails in the 12 months to September. Many of these contacts suggest that Mr Ziauddin was involved in aspects of the trial that go beyond what would be permitted to a court adviser or anyone else. Each particular accusation might appear to be modest, or might be explained away. Taken together, they suggest a disturbing pattern.

First, Mr Ziauddin appears to have helped prepare documents for the tribunal, which the judge said would be improper. On May 12th the Brussels-based lawyer sent Mr Nizamul a document called “GhulamAzamChargesFinalDraft”; it was a slightly revised version of a charge sheet he had sent six days earlier. The next day, May 13th, the tribunal issued its indictment against Mr Azam, whom the two men usually refer to as “the big one”. It was identical to Mr Ziauddin’s document. In interviews with us, both men denied that Mr Ziauddin helped prepare documents for the court.

Second, their discussions ranged beyond the realm of technical advice. On September 6th Mr Nizamul said: “I am a bit afraid about Shahinur [Shahinur Islam, a tribunal judge]. Because he is too inclined to the international standard. It...was in my mind—and prosecutors also complained to me—that he brought the references of foreign tribunals in every order.” Mr Ziauddin replied, “he has to be stopped from doing that or he has to be removed from there...If he does not stop he has to go as well, because it is so harmful to us.” Here, Mr Ziauddin talks as if he can recommend the dismissal of judges.

“Very anxious”

Again, on November 26th 2011 Mr Nizamul (who is known informally as Nasim) sent Mr Ziauddin an e-mail about an important defence petition. His message reads in full: “Subject: Order. not yet received. very anxious. please send by this night bd [Bangladesh] time, otherwise, i will follow my own one. Nasim.” Mr Nizamul’s e-mail suggests that he considered Mr Ziauddin’s arguments to have primacy over his own.

Third, material we have seen suggests that Mr Ziauddin was communicating with the prosecution and judge about the same issues at the same time. On November 8th 2011 he e-mailed Mr Nizamul a list of matters raised by a defence petition that the judge recuse himself from the trial. The first five items on the list are materials and documents that, the e-mail says, were to be supplied to Mr Nizamul by Zaed-al-Malum, the chief prosecutor at the tribunal. It was perfectly proper for the judge to receive such materials, which do not appear to concern matters that might be disputed in court. It is also possible that the prosecutor was the person best placed to supply them. Even so, it is curious that, on a matter of procedure, the chief prosecutor is being asked to help by someone who is also advising the judge.

The connection between judge, prosecution and adviser seemed to have continued. On December 11th 2011 Mr Ziauddin sent an e-mail to two prosecutors, including Mr Malum, apparently giving help with the case against Mr Azam and tips on how to present their arguments. He forwarded this advice to Mr Nizamul the same day. Speaking to us, Mr Ziauddin acknowledged knowing Mr Malum, who is acting for his family in unrelated matters. But he denies improper contact about the cases before the tribunal, and Mr Malum has not replied to our inquiries.

The material we have seen therefore suggests three things: that Mr Ziauddin had an influence over how the prosecution framed its case and how the court framed its indictment; that Mr Ziauddin told the judge in his December 2011 e-mail about how prosecutors might develop their case; and that after the prosecutors laid their charges, the judge accepted guidance about the formal accusations from Mr Ziauddin directly.

Lastly, in the case of Mr Sayeedi, an e-mail from Mr Ziauddin to Mr Nizamul refers to a shared Google document called “Sayeedi judgment”. This document says “last edit was made on October 14”. At this time, Mr Sayeedi’s lawyers were still presenting his defence to the court. The document consists of a series of subjects (“list of testimonies”, “procedural history”; “challenges”, etc). Presumably details were to be filled in later. The final headings, and the only two in capitals, read: “CONVICTION/BASIS” and “SENTENCING”.

Courts often start work on long judgments before the end of a trial and Mr Nizamul could have amended his structure to replace “conviction” with “acquittal”. However, on his own showing, that was not what was happening. He denied to us he had been working on the document in October. “Delwar Hussain’s judgment has not been even started then,” he said.

Legitimate questions

The judge called our allegations “absolutely absurd” and “all false”. Mr Ziauddin argued there were other explanations for our findings but—after the court order telling The Economist to appear before it—said he would make no further comment. We do not believe he has broken any laws and cannot be held responsible for the actions of others. In addition, our investigations have not covered any aspect of the defence’s approach to this tribunal. Nevertheless, we believe that, taken together, the material shown to us raises legitimate questions about due process that the Bangladeshi authorities should now investigate thoroughly. These investigations are the more urgent in the light of Mr Nizamul’s resignation.

First published in The Economist magazine, London, Britain, December 15, 2012