A Response to Morris Davis’s piece on the ICT

This is one of the responses shared with us from people around the world who are keen about the ongoing justice process in Bangladesh set up to end impunity for the international crimes that have been perpetrated during the country’s Liberation War of 1971. The following letter is a response by Arman Rashid, a concerned individual, to an article by Morris Davis which was published on the website of Crimes of War Education Project. For the sake of awareness, we have decided to publish his response which was originally sent as an email dated 11 November 2012. It is essential to clarify that this response is not to be considered an official response from International Crimes Strategy Forum (ICSF) on the published article.

– Admin

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Dear Mr. Davis,

I share your convictions and sentiments about judicial transparency, rule of law and the culture of following procedures. However, as a concerned Bangladeshi, I was disappointed in your article titled ‘Bangladesh War Crimes Tribunal: A Near-Justice Experience’ because of the lack of (or possible omission of) certain facts about the International Crimes Tribunal (ICT). I will list these disappointments below:

1.      Ending Impunity: You praised the creation of International Crimes (Tribunals) Act of 1973, but you failed to explain why despite of having that law we failed to prosecute the major perpetrators of 1971 for the last 40 years and how ending this impunity became a general outcry for the people of  Bangladesh . You also failed to mention how much progress was made between 1973 and 1975, the earlier years following the atrocities, to bring those perpetrators to justice. You also ignored how the culture of impunity was introduced in  Bangladesh, after Sheikh Mujibur Rahman’s death in 1975, by overthrowing the charges already filed and by stopping the early tribunals in its tracks.

2.      Conformance to IHL: The single variance mentioned in your article regarding the conformance to international standards was related to death penalty. You failed to mention any other shortcomings, but you ignored the fact that the current law of  Bangladesh allows death penalty even for lesser crimes. How is it justified to eliminate the death penalty for the perpetrators of genocide, just for the sake of conformance with IHL, while other criminals are getting that penalty for lesser crimes? That is exactly where the fact of this being a domestic tribunal and not an international court comes into play. This is also why interference in domestic affairs or international pressure to abolish death penalty only for the ICT is illogical while death penalty is acceptable and often administered in other courts in  Bangladesh and the people of  Bangladesh completely support this type of punishment for convicted mass murderers. In any case, the punishment of ‘death penalty’ is not a mandatory one in the Act, which you failed to mention. So instead of even trying to justify your point, you decided to overlook these perspectives alltogether in your article.

3.        Ambassador Rapp: I had the opportunity to read the position paper of ICSF on the concerns expressed by Ambassador Rapp which is available online. The ICSF paper contained a lot of substantive points about the recommendations Ambassador Rapp made and explains each point in details and discussed how those do not apply to the ICT and I am sure you read them all. The paper explained many legal technicalities regarding Mr. Rapp’s recommendations. As a legal expert, both you and Mr. Rapp must understand those technicalities but for whatever reason you both are acting like laymen (like me) when it comes to sharing those understandings or insights. Instead of commenting, criticizing or presenting counter arguments on those ICSF findings, in your article you decided to display a paragraph out of context to strengthen your agenda. This is nothing short of a gross distortion of truth.

4.      Toby Cadman: You failed to mention why Toby Cadman’s statement was expunged from the records and how he being a paid attorney for the defense of the currently accused perpetrators played a role in that decision. For the benefit of the reader in understanding Mr. Cadman’s views and his loyalty it was a small piece of crucial information to mention his association with the current defense team, which is something that you totally ignored in your article. You also failed to mention that most of Mr. Cadman’s grief about Bangladesh Government was related to the fact that he was not authorized to practice law in  Bangladesh and represent the accused without being a member of the Bar Council. Can you name a country that allows lawyers to practice law without a license? I can name many that don’t. Why did Mr. Cadman (or even the international community) expect the Bar Council of Bangladesh to change its own internal decade old procedures for the convenience of some accused mass murderers while the same procedures apply to any other case? What did the accused, or their paid attorneys, do to earn this special treatment?

In recent times millions are spent by the defense team at home and abroad in hiring lobbyists, lawyers and so called experts to taint the ICT initiative and to start a general outcry in the international community to stop these trials using lies and half truths. The lack of initiatives in Bangladesh Government to confront this propaganda machine and clear those misconceptions is astounding, and this frustrates thousands of people like me. The Bangladesh Government is either inept or totally incapable of addressing this PR game. As far as I know, many activists raised this issue to the government and asked for knowledgeable personnel to be appointed in all key Bangladesh embassies to attend these meetings and address this type of misinformation, but their outcry is so far ignored. In the midst of all these, whether you intended this or not, your article simply strengthens that propaganda machine, distorts the truth and spreads those misconceptions further.

For the sake of your self integrity, I’ll hope that you will revise and republish the article and add those facts that are missing, ignored or omitted. Moreover, if you are not a part of that propaganda machine yourself and not receiving direct financial benefits for your current stance and if you are truly in favor of ending impunity, establishing the rule of law and upholding human rights, I am sure you will find more common grounds rather than differences with groups like ICSF, because many activists I know in ICSF have proven track record of fighting the government/system to stop extra judicial killings and state sponsored gross human rights violations against indigenous people in Chittagong Hill Tracks (CHT) in  Bangladesh.

Kind Regards,

Arman Rashid
Toronto ,  Canada

P.S. I am not an active member of ICSF and this is not an official response from them.

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3 Responses to A Response to Morris Davis’s piece on the ICT

  1. Arman Rashid
    November 14, 2012 at 11:55 pm

    Mr. Morris sent the following replay on November 12, 2012:

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    Dear Mr. Rashid,

    The Crimes of War Education Project is no longer in operation. Due to other commitments, I am unable to do a follow-up to the July 2011 article I wrote on the ICT.

    Best,

    Morris D. Davis
    Assistant Professor of Lawyering Skills
    Howard University School of Law

  2. Arman Rashid
    November 14, 2012 at 11:59 pm

    The following is Mr. Cadman’s response, posted on his facebook page:
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    The International Crimes Strategy Forum (ICSF), an institute known for its relentless campaign on initiating war crimes trials, and the less than virtuous attack on any voice of opposition to the Bangladesh International Crimes Tribunal, published today a response to a paper by Morris David of last year. It is noteworthy that Morris Davis, formerly Chief Prosecutor at Guantanamo, published the article under the Crimes of War Education Project, in which he criticised the ICT and the Bangladesh Government for failing to uphold international standards. He also spoke of the attempts by the pro-Awami League Government to silence me as a representative of the defence.

    The response, written by Arman Rashid, a member of the Bangladeshi diaspora, raises a number of interesting issues. I will respond to the comment that he makes about me. He states:

    “4. Toby Cadman: You failed to mention why Toby Cadman’s statement was expunged from the records and how he being a paid attorney for the defense of the currently accused perpetrators played a role in that decision. For the benefit of the reader in understanding Mr. Cadman’s views and his loyalty it was a small piece of crucial information to mention his association with the current defense team, which is something that you totally ignored in your article. You also failed to mention that most of Mr. Cadman’s grief about Bangladesh Government was related to the fact that he was not authorized to practice law in Bangladesh and represent the accused without being a member of the Bar Council. Can you name a country that allows lawyers to practice law without a license? I can name many that don’t. Why did Mr. Cadman (or even the international community) expect the Bar Council of Bangladesh to change its own internal decade old procedures for the convenience of some accused mass murderers while the same procedures apply to any other case? What did the accused, or their paid attorneys, do to earn this special treatment?”

    It is interesting that Mr. Rashid considers it appropriate for a member of the defence to be silenced at a public event. He also focuses on my grief for not being admitted to the Bangladesh Bar. What Mr. Rashid omits is that the Tribunal’s own Rules of Procedure provides for foreign counsel both for the prosecution and the defence (see Rule 42). The issue was never being allowed to practice law in Bangladesh, that would require having Bangladesh citizenship and being admitted to the Bar. The issue was allowing foreign counsel to appear at the Tribunal to its status as a special tribunal. I don’t wish to split hairs with Mr. Rashid, but as we talking about allegations of misrepresentation, then one should afford full disclosure.

  3. November 15, 2012 at 11:49 pm

    All wars are not crime. Like our 1971 freedom war. This is our right.

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