An Exclusive Interview with Toby Cadman- the head of defence team Mr Choudhury Mueenuddin & Asharafuzzaman Khan

Syed Shah Salim Ahmed@english.gbnews24.com

Bangladesh International War Crimes Tribunal-2 given verdict about Choudhury Mueenuddin & Asharafuzamman khan-  Bodor Bahanee leader in 1971, while their absence. A leading legal consultant and War Crimes Expert Mr Toby Cadman-the British Barrister, who working in 9 Bedford Row International, given exclusive interview with gbnews24.com, which we publish for readers in connection with Mueenuddin and Asharafuzzaman defence team with latest updated on 30^th November 2013. Interview was taken English.gbnews24.com editor Mr Salim, pictures been supplied by Mr Toby Cadman.

Barrister Toby Cadman said, “ As a preliminary point I am engaged to represent Mr. Chowdhury Mueen-Uddin and Asfrafuz Zaman Khan, both of whom were convicted after trials in absentia – trials which we have repeatedly stated fall way below the minimum international standards required.  I would like to repeat that at no stage have the Bangladesh authorities attempted to contact my clients, or me as their legal representative, in relation to these proceedings.  There have been repeated statements by members of the Government of Bangladesh that an extradition request will be submitted, but so far they have failed to do so.  I can inform you that if a request is made we will of course contest the request and it is highly unlikely that extradition would be ordered due to a number of reasons.”

Salim: Bangladesh Government publicised that they will extradite your client through British Govt. Barrister Anis Rahman JP and Barrister N Islam also given interview in london Channel S as well as amadershomoy that current extradite treaty will be able to extradite from here to Bangladesh if Government take initiative, although Home office spokes person stated its a long process if requested. As a consultant and lawer for Mr chy whats your opinion including any steps already or will be taking to prevent this process?

Toby Cadman: The Government of Bangladesh has thus far not submitted a request.  No extradition process can start until they submit a request in accordance with the Extradition Act 2003 (as amended).  The fact that two barristers of Bangladesh origin have stated that the current extradition treat is sufficient to extradition CMU is quite irrelevant.  First, there is NO extradition treaty with Bangladesh.  There is only the Extradition Act 2003.  There are significant barriers to extradition.  First, the UK will not extradite where there is a risk of the death sentence, flagrant denial of justice, breach of human rights, prison conditions in breach of Article 3 of the European Convention etc.  These are all challenges to any future extradition request.  Second, even if an extradition request is submitted it will take months if not years.  There is no short cut process and even if the UK and Bangladesh agree upon a special treaty it must still comply with the Extradition Act 2003 and the European Convention on Human Rights.  As regards what steps are being taken on my client’s behalf I can only tell you that a number of appeals have been submitted following the judgment and all legal channels are being explored.

Salim: : Very recent Bangladeshi 71 organisation combined demonstration in the house of parliament to extradite your client Mr Choudhury. Even they are now liaison with secretary of state that Mr choudhury breach the citizenship declaration acts or hide the information to the British Government before taking oath for citizenship, while he were involve in the 1971 liberation war. The 71 organisation now bring this information to the secretary of state and claiming they continues pushes about this to extradite Mr Chy.

Toby Cadman: I am aware that a number of organisations, most notably ICSF, have campaigned for my client to be extradition or deported.  My client is a British citizen and is entitled to protection of the law. The fact that a number of organisations have campaigned for his extradition does not affect that this is subject to a judicial process.  The British Government is quite aware of the political nature of the trials and whilst it supports the bringing to an end of impunity, it has certainly not supported the manner in which these trials have been conducted.

In relation to the requests that these organisations I have made I would respond as follows. On 22 June 2013 the International Crimes Tribunal War Crimes Investigation Coordinator, Abdul Hannan Khan, issued a statement to BDNews24 that he had spent two weeks in the United States of America, specifically in New York, conducting an investigation into allegations of war crimes against Mr. Ashrafuz Zaman Khan.  The Investigation Coordinator informed the media that he had visited Mr. Khan’s place of work, the Islamic Circle of North America.  The Investigation Coordinator further confirmed that he had spoken with “various US quarters about the ongoing war crimes trials”.  The International Coordinator further confirmed that he spoken to the Bangladesh Ambassador to the United Nations, AKA Momen, about the purported propaganda to “save the war criminals”.  Whilst it is not uncommon for foreign law enforcement officials to conduct investigations on foreign soil where the issue concerns criminal proceedings in their own country.  It is normal procedure in such circumstances for the requesting state to submit a request for mutual legal assistance.  However, we have learned that this visit does not appear to have been sanctioned by the US Authorities and as such constitutes an unlawful investigation.  Second, on 22 August 2013 members of the Ekattorer Ghattak Dalal Nirmul Committee staged a demonstration in front of 10 Downing Street and subsequently submitted a memorandum to the Prime Minister, David Cameron.  I have been made aware that a number of requests were made and these requests have again been recently repeated.

The first issue raises the question as to whether Mr. Mueen-Uddin can be returned to  Bangladesh to stand trial.  It may be recalled that some months previously there were a number of inflammatory statements made by members of the Government and the Tribunal that Mr. Mueen-Uddin’s extradition would be sought and only if it were unsuccessful would the Tribunal try him in his absence.  Sanaul Huq, the Inspector-General of Bangladesh’s  National Police Force and the coordinator of the investigation, stated in April 2013 to the Mailon Sunday that “As soon as charges are made – which I can guarantee will happen in days – we will request the British Government to hand him back to Bangladesh, and we will ask Interpol for his arrest. We will use all means, diplomatic and legal, to bring him back. If we fail, we will try him in absentia.” It is therefore regrettable that the Tribunal judges took the rather extraordinary step to conduct the trial in absentia and not to pursue extradition.  As to the reasons for adopting this course of action, one may only speculate.  The Government of Bangladesh will be mindful of the fact that any extradition request will not be promptly determined, some requests take years, and that it would not be concluded during the present Government’s mandate – soon to  expire.   There is also the risk that a British Court refusing extradition based on human rights concerns would add to the mountain of criticism that the Government and Tribunal already face. The question must therefore be raised as to why the Government of Bangladesh decided not to seek Mr. Mueen-Uddin’s extradition and instead sought to try him in his absence.  This certainly speaks volumes as to the bona fide intent and tends to indicate a desire for asensational, albeit political, victory, rather than any desire to pursue justice through independent and impartial trials.

Concerning the question that has been repeatedly raised as to whether diplomatic pressure can override the legal barriers to extradition it is notable that although extradition is based partly on political considerations, any decision to order extradition is by the Courts. The  Extradition Judge would have the benefit of hearing evidence from both sides as to the  fairness of proceedings, the death penalty and any other bars raised.  The defence would be able to rely on a mountain of independent critical reports from the UN Special Procedures, international NGOs, and UK, EU and US policy makers. Those acting for the Government would have less authority to rely on.  That may prove to be insufficient, but of course that will be a matter of the Courts.

As regards the question of extradition, it is important to note that there is no extradition treaty with Bangladesh and therefore the extradition procedure falls under Part 2 of the Extradition Act 2003. As regards the possibility of Mr Mueen-Uddin being extradited to Bangladesh. Firstly it is important to reiterate that no request has been submitted by the Government of Bangladesh. Second, the United Kingdom is not permitted to extradite a person where they are at risk of the death penalty – clearly a barrier in the present case due to the repeated remarks by the Government of Bangladesh that the accused at the Tribunal will face the death penalty.  Third, the numerous concerns that have been raised as to the fairness of proceedings in Bangladesh by a host of independent sources would have a direct impact on any English Court considering an extradition request.  It is therefore highly unlikely that an extradition request would be successful.

The Bangladesh Foreign Minister, Dr. Dipu Moni, stated in April 2013 to the Mail on Sunday that: “[extradition] may be difficult because of the death penalty, but every country has a duty to hand over somebody who is charged with genocide and crimes against humanity.” This raises an important question.  Is there an obligation under international law to return a person to face trial in circumstances where there is a risk of a flagrant denial of justice, torture or summary execution?  International norms explicitly contemplate the criminal prosecution of international crimes and in certain situations States are under an obligation to extradite or prosecute offenders according to the rule ofaut dedere aut judicare. However, there is no legal compulsion to extradite a person to face trial where they are at risk of a flagrant denial of justice, torture,and summary execution.  On the contrary, there is plenty of authority to suggest that there is a prohibition in such circumstances. In extradition proceedings, Article 3 of the European Convention on Human Rights operates to render it unlawful to order the extradition of a requested person to a country where he is foreseeably at real risk of ill-treatment in a manner which is sufficiently severe to engage Article 3.

Mr. Mueen-Uddin has consistently stated that he is prepared to stand trial and establish his innocence before any Court of Law that is independent and impartial.  There is a wealth of authority to suggest that a trial before the International Crimes Tribunal would be a flagrant denial of justice.  If the Government of Bangladesh establishes an internationally supervised tribunal under the auspices of the United Nations that meets international standards then an accused person would be satisfied that he would be afforded a fair trial.

The Government of Bangladesh repeatedly makes statements that the trials exceeds the standards of all other international tribunals.  Such statements have absolutely no basis.  Any criticism of this process is deemed to constitute an international conspiracy against Bangladesh and against the spirit of the War of Liberation.   Again, such statements have no factual basis. The Government of Bangladesh claims that the Tribunal has been established to bring an end to a culture of impunity, but it is the Government that is acting with impunity.  The trials have been characterised by judicial and prosecutorial misconduct.  There is clear evidence of witness tampering, witness perjury, governmental interference and collusion.  The manner in which human rights monitoring bodies such as Odhikar and Human Rights Watch have been targeted is indicative of the approach of the current Government. The only logical response is an internationally supervised tribunal.  If the Government is to be believed that the case against my clients is so compelling and the evidence so persuasive, then what could they possibly have to fear from international scrutiny.

Concerning the issue as to whether Mr. Mueen-Uddin may stand trial in the United  Kingdom.  In this regard two points are advanced.  Firstly, this matter was first raised in the late 1990s and the British authorities, namely the Crown Prosecution Service, Metropolitan Police and the FCO Legal Department, all advised that there was no proper basis upon which to charge Mr. Mueen-Uddin.  It is unlikely that the position has changed since that time.  Secondly, due to the fact that Mr. Mueen-Uddin’s trial has been convicted in absentia, it is highly likely that a British Court would rule, that double jeopardy attaches and therefore no prosecution might now be brought in the UK.

The final issue refers to serving a sentence in this country on the basis of a judgment issued by the Bangladesh Tribunal.  The simple answer to this question is no.  There is no legal basis for this under national or international law.

Salim:  About this verdict- concrete analysis through Internation human acts as consultant please

Toby Cadman: Our team has issued a number of statements concerning the conduct of this trial and other trials before the two Tribunals.  All proceedings, without exception, have been characterised by political interference and an abandonment of any proper standards.  The fact that these proceedings were conducted in absentia adds to the plethora of criticisms.  It is sincerely hoped that following the elections there will be a complete review of trials, with the assistance of the international community, and convictions that have been fraudulently obtained will be overturned.  I hope that both of my clients who have been tried and convicted in their absence by a process that cannot be properly characterised as a judicial process, will have the opportunity to clear their names before a legitimate, and internationally supervised, process.

Salim: : Future plan infavour of your client Mr Chy.

Toby Cadman: I can only say that I will continue to protect the interests of my client and pursue all available legal options.

Salim: Thanks for your time

Toby Cadman: Thanks to you and gbnews24.com and regards.

Salim932@googlemail.com

30^th November 2013, London.

About Tomy Cadman previous notable works:

Special Department for War Crimes, Prosecutor’s Office of Bosnia and Herzegovina: From 2004-2008 served as the Head of the Prosecution Support Section, Head of Legal Advisory Section for War Crimes and Senior Legal Counsel to the Chief Prosecutor.

Kadic et al v. Radovan Karadzic (2009-2011): Recognition of foreign judgment and seizure of assets to satisfy damages of US$750 million awarded by the US District Court, Southern District of New York and confirmed by the United States Court of Appeal, Second Circuit under the Alien Tort Claims Act for acts of genocide committed during the Bosnian conflict.

Alan Hodgson v. Secretary of State for Justice; Governor of HMP Ryehill (2011): Administrative Court of England and Wales. Judicial review proceedings of the claimant’s transfer from the Republic of Ghana to serve a sentence in the United Kingdom under a transfer of prisoner agreement. The case concerns a sentence of 25 years for drug trafficking offences in the Republic of Ghana. Seeking a High Court writ of habeas corpus on the grounds that the claimant is unlawfully detained on the basis that he was the victim of a flagrant denial of justice in the Republic of Ghana.

Criminal Defence Office, War Crimes Chamber of the Court of Bosnia and Herzegovina: From 2003-2004 served as first Head of the Criminal Defence Office of the War Crimes Chamber.

Toby Cadman blog`s:

State Responsibility for the Crime of Enforced Disappearance, War Crimes Reporter Journal (2009) 9 OKO WCR

Prosecutorial Discretion and the Right to an Effective Remedy, War Crimes Reporter Journal (2009) 11 OKO WCR

Commentary of the Constitutional Court of Bosnia and Herzegovina 1996-2009 (Editor of English edition)

Digest of the Decisions of the Human Rights Chamber 1996 – 2002 (co-editor of English edition).