This is my second time reviewing a The Economist news on this blog. After the first post, I sent my queries to The Economist regional contacts as mentioned on the website. One of them turned out to be no longer working for The Economist but the other forwarded my issues to firstname.lastname@example.org. It looks I have to spend more voluntary hours to correct The Economist editors when it is about reporting on Bangladesh. Please allow me to explain after presenting some quick info about the article:
Title: Justice in Bangladesh Another kind of crime
Authors: Not able to retrieve as of March 23, 2013
Date of publication: March 23, 2013
The article starts with comparing the operation of the International Crimes Tribunal (ICT), Bangladesh with the Eichmann trial which took place in Jerusalem. According to this news, the Eichmann trial was a ‘model of meticulous process’ while the ICT is not. The reporter characterized the Eichmann trial as,
open, subject to evidence and challenge, and legal.
Even before doing a comparative study between the trial in Jerusalem and the ICT, one can critically study the claims of The Economist just based on the proceedings of the Eichmann trial. Lots of people actually did so. There are still unresolved questions of human rights and jurisdictional aspects of the famous trial which took place more than fifty years ago. The failure of The Economist to recognize those is no less than spectacular. To respect my readers’ patience I would only consider the issues mentioned by this piece of news while comparing the two courts.
In the third paragraph, the article goes on listing the points of criticism. Unfortunately it starts with an utter lie. Let me quote it here.
The government has interfered in the court’s deliberations.
This is a typical vague statement made by The Economist. I just checked with the previous reports of The Economist on the ICT here, here, here, here and here. None of those news articles has ever raised any specific allegation against any unit, office or department of the Government of Bangladesh that it is hindering or influencing the natural operation of the investigation, prosecution, defense or trial units of the International Crimes Tribunal. Moreover, as the two mostly circulated national dailies, both English and Bangla, are reporting the day by day progress of the tribunal, it is obvious that even the defense had never complained against any unit, office or department of the government. The only exception is the alleged abduction of Sukhoronjon Bali for which I have dedicated a whole article in this website and will be addressed later here. Let us know what happened in the Eichmann Trial. Did any influence ever take place throughout the process of the trial? Well, The Economist says it! Eichmann was kidnapped by the Mossad operatives from the streets of Buenos Aires, the capital of another sovereign nation, Argentina! Eichmann’s attorney, Dr. Servatius, raised the issue whether presenting him before the court through an Israeli covert operation on another territory beyond its jurisdiction was legal. The court skipped the issue mentioning that this was not a part of the case. According to the court this had to be mediated between the two governments . So, the question of whether Eichmann had the right to be presented lawfully before the court remained unanswered at least in the eyes of the defense and some of the scholars who later analyzed the case. A detailed treatment on this matter is available in ‘The Eichmann Trial: Some Legal Aspects’ by the eminent international law expert professor Hans W. Baade published in the Duke Law Journal in 1961 while the trial was taking place. My readers may argue that reviewing an ongoing case is little risky as the critic doesn’t have the chance to verify whether the trial process passes the test of time. Well, that’s what The Economist is doing! But I accept your argument! Let us take a more recent analysis. I would also like to quote Professor Ian Shapiro of the Yale University who discussed the Eichmann trial in his class in 2010. Let me quote a conversation took place between Professor Shapiro and his student around the 11-th minute of the class.
Student: In one of the last two chapters, I believe, they’re discussing the reasons for judgment against him on all the counts, and one of them she’s discussing the four main points that they attempt to prove through the prosecution. And in some of them they discuss the term in dubio contra reum, which is, I guess, when in doubt act against the defendant. And that was kind of just when we don’t have necessarily all the evidence because a lot of it is speculative, we will act in a way that will…
Professor Ian Shapiro: Okay, so there was not a lot of attention to the rules of evidence.
Professor Ian Shapiro: Right? Okay, so that’s one thing. There were a lot of what we would think of as procedural irregularities in this trial. Yeah?
Student: I was uncomfortable with the speed of the execution. It happened extremely soon after his appeal and plea for mercy; within a couple of hours.
Professor Ian Shapiro: Right, it was the way executions are done in China today, not the way executions are done in the United States today, right? It was very rapid. And why were you uncomfortable with that?
Student: I think there’s no doubt that what he did was wrong, but you at least have to go through the procedures just to ensure that justice is actually served, so that even if it was correct that he deserved the death penalty. I think the actual protocol should have been followed and that he should have gotten his time to make the appeal.
Let us look into another incidence related to the Eichmann trial. It was reported by Der Spiegel that an agent from the German Intelligence Service, Rolf Vogel was sent to persuade the Israeli prime minister David Ben-Gurion so that the prosecution of the Eichmann trial will never raise the question about the involvement of Hans Globke regarding Eichmann’s activities. In exchange Israel was awarded 240 million DM military aid.
When Moshe Pearlman, the Mossad operative who took part in capturing Eichmann, published his book,The Capture of Adolf Eichmann, four weeks before the trial opened, Hannah Arendt aptly comments in her book, Eichmann In Jerusalem, that,
The book caused some embarrassment in Israel, not only because Mr. Pearlman had been able to divulge information about important prosecution documents prematurely and had stated that the trial authorities had already made up their minds about the untrustworthiness of Eichmann’s testimony, but because a reliable account of how Eichmann was captured in Buenos Aires was of course the last thing they wanted to have published.
So, in contradiction to what The Economist thinks, experts and public media, from the time of the trial to more recent years, have been raising issues about government intervention into due trial process. I would invite the readers to take some time to go through the proceedings of the ICT reported by the most circulated national dailies for last couple of years. Do you find any allegation by the defense that the government has unlawfully captured any accused or his assets? Do you find any allegation by the defense that the government has instructed the prosecution not to charge someone who took part in war crime in 1971? I don’t!
Let’s go to the second allegation mentioned in the article. I would like to quote it exactly.
Public discussion of the proceedings has been restricted.
I don’t think we need arguments here. A hands on experiment should be more convincing. If you type in ‘international crimes tribunal site:thedailystar.net’ in the search box of Google.com, it will show you the search results on International Crimes Tribunal explicitly from the website of the mostly circulated English national daily of Bangladesh. To make your lives easier here is the ready made link to be clicked on! I hope you see what I see. Numerous reports by the daily on the ICT, right? So, it is not true that the public media are not discussing about the court. Let us take a closer look. This link, at the top of the search result, hosts the full verdict of one case. This link discusses how the court is dealing with witness protection. This link reports the proceeding of a specific day. So, the most circulated English national daily is routinely reporting and discussing the proceedings of the tribunal. Dear The Economist, did you just lie?
Let me quote the third allegation from the report.
The number of defence witnesses was curtailed.
The Economist didn’t make it clear on what ground this number of defense witness was curtailed. As no specific case was mentioned let me pick the case of Sayedee. On August 14, the tribunal fixed the number of defense witness within 20 to match that of the prosecution witness. Why did The Economist fail to compare between the numbers of witnesses on both sides? Let us know what happened when Eichmann’s attorney wanted to call in the people who witnessed the abduction of Eichmann. Once again I am quoting Hannah Arendt.
Dr. Servatius, who tried strenuously and unsuccessfully both before the District Court and before the Court of Appeal to call Zvi Tohar, chief pilot of the El-Al plane that flew Eichmann out of the country, and Yad Shimoni, an official of the air line in Argentina, as witnesses, mentioned Ben-Gurion’s statement; the Attorney General countered by saying that the Prime Minister had “admitted no more than that Eichmann was found out by the Secret Service,” not that he also had been kidnaped by government agents.
So, Eichmann’s attorney was never given a chance to prove the prime minister wrong before the court. This is no violation of justice as certified by The Economist. Did the ICT in Bangladesh stopped the defense from registering witness statements? No, it just limited the number of witness on both side to be brought for cross-examination for logistic issues. Did the Eichmann trial ever do anything limited by logistics issue? Well the Shapiro lecture mentioned earlier suggests that the rationality of the abduction can only be justified by logistic argument and not by legal arguments. Why didn’t The Economist do its homework?
Let us go to the next allegation.
One was even kidnapped on the steps of the court.
A blog post was fully dedicated in this website to counter this argument. Let me summarize the points here. This abduction was alleged to take place in broad daylight OUTSIDE the court. Only witnesses are the defense lawyer and two journalists, both employed by the Jamaat owned newspaper with ultra poor readership due to its credibility issue, who appeared there all on a sudden right when it was taking place. No other journalist or common people, not involved with the defense, was present! The registrar of the court was present and confirmed that nothing such happened. The defense never filed a case for this abduction. This was not even reported by the two most circulated Bangla and English national dailies. So, The Economist was more prompt than the local media itself to buy this abduction drama without verifying it through third party accounts! How pathetic! Let’s now compare this unproven kidnap story with the proven (and applauded by the Israeli parliament) kidnap incidence of Eichmann himself! Was the reporter out of his/her mind while comparing these two cases?
The next issue is as follows.
In one case, the presiding judge resigned and the death sentence was handed down by three men who had not heard all the witnesses.
I have stopped being surprised by vague arguments made by The Economist. What does this allegation mean? Didn’t the new judges have access to the witness statements made to the prosecution? Didn’t the new judges have access to the transcripts of cross-examination of witnesses? I don’t see what purposes are served by such poorly framed arguments other than just tarnishing its own credibility and integrity! Moreover, I don’t see how The Economist compared this situation where the situation of resignation of a judge never appeared.
Then it was mentioned that,
In another, the defendant was represented by a lawyer who did not have nearly enough time to prepare a case.
So, what is the point here? Was the lawyer inefficient or the tribunal was just sabotaging the defense? From my review of the day to day proceeding it is clear that the court insisted on the efficiency and time management of both the prosecution and defense from time to time. There are several cases where the court refused both the prosecution and the defense extra time because they failed to proceed in due order. Let me quote from the proceedings of August 23, 2011 (as transcripted here) where one of the prosecutors was presenting before the court.
Haider Ali then got and spoke. He said that ‘Pirojpur district in Barisal Division is one of the places where some of the atrocious incidents took place that happened between 25 March 1971 and 16 December 1971. They are all stated in the formal charge. An Investigation agency was formed according to ICT act section 8, and the investigation officials thus appointed carried out the investigation and prepared the investigation report. The official investigation started on 21.07.2010.’
The tribunal chairman interrupted him and said, ‘You should better go straight to your argument rather than citing history. No need for all the explanations.’
The prosecution said that he thought there should be at least a little bit of explanation.
Here is another example taken from the proceedings of March 5, 2012 where the court responded to the defense when they applied for something which was related to jail condition and beyond jurisdiction of the court.
Justice Nizamul Haq: Mr. Fakhrul Islam [Defence Counsel]; you have provided a lot of papers here except the Clemency Order. You’re repeating the same issues which have already been disposed by us. Don’t do it again. It seems to us, it is nothing but wastage of time.
Let us compare these two cases with two excerpts from the proceedings of the Eichmann trial as reported here.
On one occasion, as The New York Times reported, Justice Landau became impatient with the chief prosecutor, Gideon Hausner, after Mr. Hausner called witnesses who testified about horrors in Polish and Lithuanian ghettos. According to the parameters set by the indictment, these narratives were not strictly germane to the case.
“I know it is difficult to cut short such testimony,” Justice Landau told Mr. Hausner in open court. “But it is your duty, Sir, to brief the witness, to explain to him that all external elements must be removed that do not pertain to this trial.”
On another occasion, as Time magazine reported: “Eichmann was so wrapped up in his notes and papers that Judge Landau coldly had to remind him to stand when addressed by the court. Eichmann’s face flushed with momentary anger as he looked up; then, realizing where he was, he jumped up, apologizing.”
So, The Economist has found major dissimilarity between how the Court managed time in Jerusalem fifty years back and how the ICT is now doing it in Bangladesh. I wish they could present one specific example like I did here.
These arguments convinced none but only The Economist reporter that if measured against the Eichmann Trial scale the ICT procedures fell short of quality. In later part of the article this conviction made The Economist arrive at more conclusions categorically partial and misleading. One of them is quoted right here.
Now the government wants to rewrite the law to allow death sentences to be applied retrospectively.
WOW! Lie of the day (at least for me!). Let me take some time to inform you what amendments are being discussed here. The International Crimes Tribunal Act 1973 allowed only the defendants to appeal against a verdict. The prosecution was not allowed to appeal if they were unhappy with a punishment. Moreover the law didn’t allow the prosecution to frame charge against an organization if it officially had taken part in war crime. The amendments, we are discussing here, allow the prosecution to appeal if they are not happy with a verdict. It looks providing only the defendants and not the prosecution with the right to appeal is fair and just in the eyes of The Economist. It is perfectly fine with The Economist if the relatives, who lost their dear ones in 1971, are unhappy with the trial and don’t have the right to appeal! Let’s look at the later part of the argument. The Economist got a problem for the retrospective amendment. Let us look at the very law under which the Eichmann trial took place. This is called the Nazis and Nazi Collaborators (Punishment) Law, 5710-1950. Is there any retroactive amendment? Yes! By Nazis and Nazi Collaborators (Punishment) Law (Amendment) 5723-1963, it repeals section 12 (b) of the original law. Let me quote the removed section here.
(b) No person shall be prosecuted for an offence under this Law, except offence under section 1 or 2(f), if twenty years have passed since the time of the offence.
So, the very law which tried Eichmann allowed retroactive amendment which may lead to death sentence to people who were not to be punished by the original law. One more time The Economist has either lied or failed to do its homework. My sympathy is with the readers of The Economist!
These six hundred words by The Economist is, to say the least, horrendous shame on journalistic honesty, academic integrity as well as disgrace for professionalism.
I would humbly quote Professor Shapiro’s comment on Eichmann trial once more.
Professor Ian Shapiro: There was more than one agenda here. One agenda was justice, bringing him to justice, but clearly there was an agenda of revenge, and there was an agenda of catharsis for many of the people who testified, who came there. It was very important for them personally to get up and speak about what had happened to them for which he was held responsible. So there were multiple agendas going on here, only one of which was what we normally think of as what’s going on in a criminal prosecution.
The comment of Hannah Arendt on the Eichmann trial is also very relevant for ending this discussion.
The irregularities and abnormalities of the trial in Jerusalem were so many, so varied, and of such legal complexity that they overshadowed during the trial, as they have in the surprisingly small amount of post-trial literature, the central moral, political, and even legal problems that the trial inevitably posed. Israel herself, through the pre-trial statements of Prime Minister Ben-Gurion and
through the way the accusation was framed by the prosecutor, confused the issues further by listing a great number of purposes the trial was supposed to achieve, all of which were ulterior purposes with respect to the law and to courtroom procedure. The purpose of a trial is to render justice, and nothing else; even the noblest of ulterior purposes – “the making of a record of the
Hitler regime which would withstand the test of history,” as Robert G. Storey, executive trial counsel at Nuremberg, formulated the supposed higher aims of the Nuremberg Trials – can only detract from the law’s main business: to weigh the charges brought against the accused, to render judgment, and to mete out due punishment.
I promised at the very beginning that my discussion will be focused exclusively on The Economist’s references made to the Eichmann trial while comparing the operation of the ICT in Bangladesh. While going through the arguments one by one I failed to find any relevance or merit that could possibly justify those arguments.
It is not always possible for a reporter to estimate the impact of the article s/he is writing. So, trying to justify the statements as much as possible with facts and rationale might be the best practice just like we always try to document the code of a computer program as much as possible. I still thank The Economist for taking interest in Bangladesh.
As I have said this is a live commentary on the press covering the ICT of Bangladesh, I am going to send my issues to the authors of this article. I will keep you posted in the comment section whether they agreed with me or not.