The notes from this hearing are based on media reports as I was not present at the tribunal.
At the hearing, the prosecutor Zead-Al-Malum told the tribunal that the investigation agency had submitted to it an investigation report relating to BNP leader Salauddin Quader Chowdhury, in which it was alleged that he committed crimes against humanity and genocide during the 1971 war of independence.
He asked for one month's time in order for the prosecution to look at the report and press charges.
The tribunal accepted the plea and set November 14 as the date to press charges.
On 3 October, the Investigating officer Nurul Islam had submitted a 119-page report with around 8,000 pages of supporting documents including statements of witnesses, victims and their families, to the chief prosecutor of the International Crimes Tribunal Gholam Arif Tipu.
Nurul Islam had previously told a press conference that Salahuddin is alleged to have been involved in 32 specific incidents which he said had been 'proved preliminarily'.
He is quoted as saying that "The crimes he had committed include killing civilians, abduction, rape, torture etc."
"It's proved in primary investigation that he had taken part directly in crimes against humanity [to be charged] under the ICT Rule 3 (2) and genocide under 3 (2) B of the ICT Rule. He had also taken part indirectly in organising and plotting the crimes [to be charged] under the ICT Rule 3 (2) C."
"A list of the murdered people has also been finalised," the investigator said.
Comment
1. Salauddin Quader Chowdhury is the only one of the seven detained men who has not sought legal representation. It is clear, from watching the defence lawyer represent the other accused, that Chowdhury is going to significantly prejudice himself unless he gets a lawyer.
2. It is notable that in all the recent hearings involving his case, Chowdhury is not present in the tribunal. It remains unclear whether this is because he refuses to attend or the tribunal does not ask for his presence because of how he has behaved when he has come to the tribunal in the past. See this for example, 'What to do about SQC'. to see details of other hearing about Chowdhury, click here
Sunday, October 30, 2011
Monday, October 24, 2011
3 Oct 2011: New Age contempt claim
Prior to the main order 'framing charges' against Delwar Hossain Sayedee given on 3 October, the Tribunal read out an order in which it claimed that an article written by me in New Age was contemptuous. It asked that I, the editor of the paper (Nurul Kabir) and the paper's publisher (ASM Shahidullah Khan Badul) - with the last two alleged to have 'aided' the publication of the alleged contemptuous article - are asked to provide a written response to the Tribunal setting out why it should no initiate proceedings under section 11(4) of the International Crimes (Tribunal) Act 1973.
Section 11(4) of the 1973 Act states, 'A Tribunal may punish any person, who obstructs or abuses its process or disobeys any of its orders or directions, or does anything which tends to prejudice the case of a party before it, or tends to bring it or any of its members into hatred or contempt, or does anything which constitutes contempt of the Tribunal, with simple imprisonment which may extend to one year, or with fine which may extend to Taka five thousand, or with both'.
The article in question was published on 2 October and called, 'A Crucial Period for the International Crimes Tribunal'
Below is a copy of the written order made by the Tribunal. It should be noted that we have, since this order was made, responded in written submissions to the Tribunal which argue, strongly, that the article in question is not in contempt of court under the applicable laws of Bangladesh as set out by the Appellate Division of the Supreme Court of Bangladesh. An oral hearing has been set for 27 November 2011. The written responses will be made public at the time of oral hearing.
Section 11(4) of the 1973 Act states, 'A Tribunal may punish any person, who obstructs or abuses its process or disobeys any of its orders or directions, or does anything which tends to prejudice the case of a party before it, or tends to bring it or any of its members into hatred or contempt, or does anything which constitutes contempt of the Tribunal, with simple imprisonment which may extend to one year, or with fine which may extend to Taka five thousand, or with both'.
The article in question was published on 2 October and called, 'A Crucial Period for the International Crimes Tribunal'
Below is a copy of the written order made by the Tribunal. It should be noted that we have, since this order was made, responded in written submissions to the Tribunal which argue, strongly, that the article in question is not in contempt of court under the applicable laws of Bangladesh as set out by the Appellate Division of the Supreme Court of Bangladesh. An oral hearing has been set for 27 November 2011. The written responses will be made public at the time of oral hearing.
'It has come to our Notice that a special report under the caption, "A crucial period for International Crimes Tribunal" written by by Mr David Bergman has been published in the Daily New Age on 2nd October 2011. Upon perusing the report, we have found some objectionable comments against the sanctity and impartiality of the Tribunal which are reproduced below.
(a) To many in Bangladesh the guilt of Sayedee and the other detained men are foregone conclusions; tribunal hearings about cognisance and charge framing are simply procedural obstacles on a legal conveyor belt that will inexorably take Sayedee and the others towards their rightful convictions.
(b) The accused are, to many people, already proved to be guilty with the tribunal simply acting as a mechanism to give their ‘guilt’ a judicial stamp.
(c) This raises two key issues. First, the tribunal seems to have taken cognisance for many of these twenty offences on the basis of looking at just one witness statement. It is difficult to see, unless the statements were extremely strong, how the tribunal could come to the conclusion that there is ‘prima facie’ evidence for the commission of an alleged ‘crime against humanity’ which took place forty years ago just on the basis of one witness statement.
(d) The rules, however, are clear that cognisance must be taken of each offence. Moreover, there is a separate issue about whether the tribunal even had, in its hand, all the witness statements when it took cognisance.
It may be noted that in the earlier occasion on 14th April, 2011, Mr David Bergman wrote another article in a daily terming the tribunal as 'Rubber stamp and backboneless.' In an open court, his attention was drawn to those remarks by this tribunal and took lenient view in the matter considering him a foreign journalist, he was simply cautioned with an expectation that he would be more careful in making reports about the functions of the Tribunal.
It appears from the para (a) and (b) of this Notice that Mr David Bergman has again tried to establish the Tribunal as a judicial stamp acting like a tool for finding accused Sayedee guilty under a legal coverage. The above comments against the tribunal appear to have been deliberately made in order to lower down the prestige and honour of the Tribunal in the estimation of the people at large all over the world.
The order of taking cognisance of offence and the subsequent orders of this tribunal will speak a volume that this tribunal after perusing formal charge, 1st volume containing the statement of 30 witnesses and DVD cassette containing the statements of all witnesses took cognisance of offence and those papers were submitted much earlier before the tribunal by the prosecution.
But Mr David Bergman has again tried to establish as indicated in para (c) and (d) stating that the tribunal took congisance of offence on the basis of statement of only one witness. Where he got it? It is evident that Mr David Bergman has deliberately distorted the judicial orders of the Tribunal in order to tarnish the image of the Tribunal to paid and to paint it to as an biased form of justice.
Editor Mr Nurul Kabir and publisher Mr ASM Shahidullah Khan of the daily New Age have aided Mr David Bergman in making contemptuous comments against this Tribunal by publishing the said article in their esteemed daily, New Age: thus they are also held responsible.
That the opposite parties namely (1) David Bergman, Editor Special Report, New Age, Bangladesh correspondent, Asia Calling, Freelance Journalist (2) Nurul Kabir, Editor New Age, Holiday Building, 30 Tejgaon Industrial Area, Dhaka 1208 and (3) ASM Shahidullah Khan, publisher and chairman of the Editorial board, Holiday Building, 30 Tejgaon Industrial Area, Dhaka 1208 are herby asked to show cause within 23 October as to why a proceeding under section 11(4) of the International Crimes (Tribunal) Act 1973 shall not be initiated against them for the contemptuous reports noted in the body of this notice. Registrar is directed to enter and register the matter as Miscellaneous Case.
Copy of this notice be served upon the opposite parties.
Let the matter be placed in the list on 23.10.2011 for order.
Sunday, October 23, 2011
3 Oct 2011: Sayedee Indictment
Today's hearing was set for the tribunal to give its ruling on an application made by the prosecution to frame charges against Delwar Hossain Sayedee - following arguments that took place on 4th September, 21st September, 25th September and 27th September 2011. (Prior to this, the Tribunal passed an order relating to a possible contempt of court for an article written in the newspaper New Age, by myself. This is dealt with in a separate blog to be posted shortly).
Unusually, the tribunal provided journalists with a copy of an uncertified copy of the order to assist them in reporting on the order, which was very long, and so below is a transcription. Please note the following:
- the order uses the symbol '@' to stand for 'alias' or 'otherwise known as'.
- occasionally, I have added a preposition to make sense of a sentence, or corrected a misspelling.
- the place 'Pirojpur' is also spelt 'Pirozpur'. They are the same place.
Otherwise however the order is transcribed word for word.
After the order was read out, Sayedee was given an opportunity to speak to the court, and what he said is set out below.
This posting does not contain any remarks or comments about the order - I will post a seperate blog on this in the next few days
Order dated 03.10.2011: Order no 23
After the charges were read out Sayedee was told to come to the witness box at the front of the court, and was asked whether he underttood what was said in English. He said that he had, so there was no need to say it in Bangla. He asked whether he could speak to his lawyer, but the Tribunal chairman said that he just had to say whether or not he was guilty or not and it was not necessary to consult. Sayedee’s lawyer was urging the tribunal chairman to allow him to speak to Sayedee.
Sayedee then said that he understand that he had been ‘subjected to a political vendetta.’ He then asked the tribunal if he could say something very briefly. It agreed and he said the following, which is an approximate summary
One of the judges then said the Sayedee said that though charge has been framed it does not mean that you have committed those crimes, you can present your case, your witnesses etc
Unusually, the tribunal provided journalists with a copy of an uncertified copy of the order to assist them in reporting on the order, which was very long, and so below is a transcription. Please note the following:
- the order uses the symbol '@' to stand for 'alias' or 'otherwise known as'.
- occasionally, I have added a preposition to make sense of a sentence, or corrected a misspelling.
- the place 'Pirojpur' is also spelt 'Pirozpur'. They are the same place.
Otherwise however the order is transcribed word for word.
After the order was read out, Sayedee was given an opportunity to speak to the court, and what he said is set out below.
This posting does not contain any remarks or comments about the order - I will post a seperate blog on this in the next few days
Order dated 03.10.2011: Order no 23
Today is fixed for passing an order on charge matter as such the record is taken up for order. Before passing the order, we want to provide a brief background and context of the case, its history and the arguments put forward by both prosecution and defence before the tribunalSayedee's response
Introduction
This is the first case before the International Crimes Tribunal (hereinafter referred as the “Tribunal”) established under the International Crimes (Tribunal) Act enacted in 1973 (hereineafter referred to as the “Act”) by Bangladesh Parliament to provide for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes and crimes under international law committed in the territory of Bangladesh. This is thus a case bearing considerable significance for the people of Bangladesh as well as for the victims of international crimes committed in Bangladesh during the Liberation Struggle, particulary between 25th March and 16h December 1971. As such it is a remarkable occasion which is only one of its kinds so far in the legal history of Bangladesh when we have the task to deal with the manner of framing the charge involving internationally recognised crimes such as crimes against humanity, genocide and other crimes enumerated under section 3 (2) of the Act.
Historical Context
In August 1947, the partition of British India based on two nation theory gave birth to two news states, one a secular state named India and the other the Islamic Republic of Pakistan. The two nation theory was propositioned on the basis that India will be for Hindus while Pakistan will be a state for the Muslims. This theory culminated into the creation of Pakistan which was comprised of two geographically and culturally separate areas to the east and west of India. The western zone was eventually named West Pakistan and the eastern zone was named East Pakistan which is now Bangladesh.
Ever since the creation of Pakistan the Pakistan Government adopted discriminatory policies backed by its bureaucracy and Army to rule over the people of East Pakistan that caused great disparity in every field including education, welfare, health, armed services, civil bureaucracy, economic and social developments. One of the first patently discriminatory and undemocratic policies of the Government of Pakistan was manifested when in 1952 the Pakistani authorities attempted to impose Urdu as the only State language of Pakistan ignoring Bangla, the language of the majority population of Pakistan. The people of the then East Pakistan started movement that eventually turned to the movement for greater autonomy and self determination and eventually independence. Numerous Bengaless sacrificed their lives to realize Bangla as a state language since the people of East Pakistan started thinking for their own emancipation and started a political movement for getting provisional autonomy for East Pakistan.
In the general election of 1970, the Awami League under the leadership of Banghubandu Sheikh Mujibur Rahman won 167 seats out of 300 seats of the National Assembly of Pakistan and thus became the majority party of Pakistan. Of the 300 seats, 169 were allocated to East Pakistan of which Awami League won 167 demonstrating an absolute majority in the parliament. Despite this overwhelming majority Pakistan government did not hand over power to the leader of the majority party as democratic norms required. As a result, movement started in this part of Pakistan and Bangabanhu Sheikh Mujibur Rahamn in his historic speech of 7 March 1971 called on the people of Bangladesh to strive for independence if people’s verdict is not respected and power is not handed over to the leader of the majority party. On 26th March, following the onslaught of “operation Search Light” by the Pakistan military on 25 March Bangabandhu declared Bangladesh independent immediately before he was arrested by the Pakistani authorities.
With his declaration of indpendence, the war to liberate Bangladesh from the occupation of Pakistan military began that ended on 16th of December 1971 with the surrender of all Pakistan military personnel present in Bangladesh before the Joint India and Bangladeshi forces in Dhaka. In the war of Liberation that ensued all people of East Pakistan wholeheartedly supported and participated in the call to free Bangladesh but a small number of Bangalees, Biharis, other Pakistanis as well as members of a number of different religion based political parties joined and/or collaborated with the Pakistan military to actively oppose the creation of independent Bangladesh. Except those who opposed, Hindu communities like others in Bangladesh supported the Liberation war which in fact drew particular wrath of the Pakistan military and their local collaborators who perceived them as pro-India and made them targets of attack, persecution, extermination and deportation as members belonging to a religious group
As a result 3 million (thirty lacs) people were killed more than 200,000 (two lacs) woman raped, about 10 million (one crore) people deported to India as refuges and millions of others were internally displaced. It also saw unprecedented destruction of properties all over Bangladesh.
To prosecute their policy of occupation and repression and in order to crush the aspiration of the freedom loving people of an independent Bangladesh, the Pakistan government and the military setup a number of auxiliary forces such as the Razakers, the Al badr, the Al shams, the Peace Committee etc essentially to collaborate with the military in identifying and eliminating all those who were perceived to sympathize with the liberation of Bangladesh, individuals belonging to minority religious groups especially the Hindus, political groups belonging to Awami League and other pro-independent political parties, Bangladesh intellectuals and civilian population of Bangladesh. The truth about the nature and extent of the atrocities and crimes perpetrated during the period by the Pakistan military and their allies became known to the wider world through independent reports by the foreign journalists and dispatches sent home by the diplomatic community in Dhaka.
The road to freedom for the people of Bangladesh was arduous and tortuous, smeared with blood, toil and sacrifices. In the contemporary world history, perhaps no nation paid as dearly as the Banglalees did for their emancipation.
Pursuant to Bangabandhu’s declaration of Independence, a provisional government-in-exile was formed on April 17 1971 in Mujib Nager with Bangabandhu as the president of Bangladesh. In his absence, Syed Nazrul Islam was the acting president and Tajuddin waa the Prime Minister who coordinated the operations to expel the occupying Pakistan forces and to liberate Bangladesh.
In order to bring to justice the perpetrator of the crimes committed in 1971, the International Crimes (tribunal) Act 1973 was promulgated. However no tribunal was set up and no trial took place under the Act until the government established the International Crimes Tribunal on 25th of March 2010.
Procedural History
Accused Delwar Hossain Sayeedi was arrested and brought before the Tribunal on 2nd November 2010. Since his arrest the Tribunal has disposed a number of bail petitions which were disposed of in accordance with law. In addition, on the prayer of the acused counsel, the tribunal directed the relevant authorities to ensure better treatment of the accused in the hospital as desired and also directed the concerned authorities to provide him with ‘health friendly’ transportation while transporting the accused from prison to hospital and to this tribunal.
On the basis of investigation report of the Investigating Agency the prosecutors submitted that the accused as a member and leader of the local Razakar bahini (i.e auxiliary force) and as an individual and member of a group of individuals has committed crimes against humanity, genocide and other crimes in different places of Pirojpur sub-division (now a district) during the liberation war.
On perusal of the formal charge and documents available on record, this tribunal took cognizance of offence on 14th July 2011 against accused Delwar Hossain Sayeed. The learned prosecutor Mr Syed Haider Ali and the learned defense counsel Mr Md Tajul Islam made elaborate submissions on the Formal Charge and framing of charges by the tribunal on 4th September, 21st September, 25th September and 27th September 2011. In the following paragraphs, we summarise the submission made by the counsel of the Prosecution and the Defence along with the views of the Tribunal.
Submissions by the prosecution and the defence
The learned prosecutors drew our attention to the acts and atrocities allegedly committed by the accused during 1971 independence war within Pirijpur subdivision now Pirojpur district within the territory of Bangladesh. It was submitted that the accused was personally involved in the killing of individuals and groups of individuals, torture, rape, looting, arson and destruction of houses, forcible conversion of Hindus to Muslims – which comes under the purview of crimes against umanity genocide, and other crimes mentioned in section 3(2) of the International Crimes (Tribunals) Act 1973. It was submitted that the statement of witnesses and documents collected during investigation amply establish the allegation regarding commission of such acts and complicity of the accused in the crimes which have been narrated in the Formal Charge. The prosecutors submitted that in proving the crimes they have ocular, documentary, and other evidence of the offences mentioned of which the accused in liable to be charged under section 3(2) of the Act which disclose the material elements that constitute the offence of crimes against humanity and other crimes enumerates therein.
The learned counsel for the defence filed an application on 20 September 2011 for discharging the accused arguing that the required elements to constitute the offence of crimes against humanity are not available. The definition of the offence alleged are not well defined in the Act. The offences are not specified in the Act and complicity of the accused therewith have also not been stated.
He then submitted that the proposed charge submitted by the prosecution are vague, indefinite, the elements of crimes are not defined and requirement of framing charges are absent and that the proposed charge has no sufficient legal basis, the nexus between crimes against humanity and international armed conflict are absent and the requisite knowledge about the alleged crimes by the accused is absent in the proposed charge. He further submitted that after the enactment of the 1973 Act, the jurisprudence on these issues have evolved, particularly by the different international tribunals. Moreover the defence counsel added the allegations are vague, and that the accused do not have sufficient scope to understand the allegation of which he is being tried. In support of his submissions, the learned counsel drew our attention to a number of decisions of the International Criminal Tribunal for the Former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR) and Special Court of Sierra Leone which have also been cited for the application for discharge.
The learned counsel further submitted that on 06 September, 2010, Bangladesh acceded to the International Covenant on Civil and Political Rights (ICCPR) and became bound by the rights and obligations under the instrument. He referred to Article 2(1) of the ICCPR that Bangladesh is to undertake to respect and to ensure all insicudal within its territory and subject to its jurisdiction the rights recognized in the present covenant, without distinction of any kinds, such as race, color, sex and political and national for social origin properly birth or other status.
He also submitted the concluding observation of the Human Rights Commission Portugal (Macau) (1999) regarding the Committee’s concern at para 12 over vague and insufficiently defined or abstract offence. He further referred to the Vienna Convention on Law of the Treaties regarding the binding nature of treaties upon the parties.
The learned counsel further submitted that the rule of law as evidenced by the introduction by the ICC elements of crimes which compliments the ICC Rome Statute which recognized that there was a need to define crimes with clarity, precision and specificity that many jurisdictions require for criminal law.
By referring from judgments or ICTY and ICTR, he submitted that the attack must be widespread or systematic with a clear knowledge about the commission of that offence but our act does not contemplate this and the crimes are not adequately defined. He further submitted that the provision of Article 15(1) and (2) of the OCCPR regarding prohibition of prosecution of any criminal offence which did not constitute any criminal offence under national or international law at the time of its commission. He also referred to Article 14(3) of the ICPR regarding the accused rights to be informed of the charges ‘promptly and in detail in a language which he understand of the nature and cause of the charge against him.’
The defence counsel referred to the two decisions of the Supreme Court of Bangladesh, one being Hossain Mohammad Ershad Vs Bangladesh and others reported in 21 BLD (AD) 69 and another being State Vs Secretary, Ministry of Law Justice and Parliamentary Affairs and others reported in 29 BLD (HCD) 656.
In reply to the legal issues raised by the defence, the learned prosecutor Mr Syed Haider Ali submitted that at this stage of proceedings as to whether charges will be framed or not, the legal submissions of the learned counsel of the defence are not relevant. He also submitted that the learned counsel for the defence assailed the proposed charge which basically has no legal value as the Tribunal is only to consider the formal charge the statement of witnesses and other material in order to decide whether there are materials to frame charge.
Upon perusing the formal charge and statements of the witnesses recorded by the investigating agency and the documents submitted therewith if the tribunal is of opinion that are sufficient grounds to presume that the accused has committed an offence then only the charge will be framed otherwise the accused shall be discharged. The Act does not prescribe to submit any proposed charge, only to assist the tribunal, the said proposed charge has been submitted and that can not be the basis of any framing of charge.
He further submitted that the allegation made in the formal charge are not vague rather definite and clear adding that that offences as mentioned in section 3(2) of the Act are clearly defined. The allegations and the documents submitted therefore will establish a prima facie case against the accused person. The learned prosecutor further submitted that the Act is very much specific and clear and as per provision of section 22 of the Act, the Tribunal formulated the rules of procedure which in itself is adequate to conduct a fair trial to which the Tribunal is duty bound. As such. He argued the Tribunal do not need to borrow anything from any other tribunals, but if the tribunal feels that some reference from the others tribunals are relevant, then they can consider them as only having persuasive value to reach at a proper decision. He further submitted that nowhere in the discharge application nor in the submission the learned counsel for the accused has stated that the accused is innocent and that he did not commit any office in Pirojpur District during the lieration war of Bangladesh. He further submitted that the international Treaties and comments are not obligatory upon the state parties and the Courts and Tribunal of the state parties are to be guided by their domestic laws and this Tribunal being not a hybrid Tribunal not a Tribunal being set up by the United Nations, rather set up under the provision of section 6 of the Act 1973 and the Act was promulgated by the parliament of the country after the liberation of Bangladesh to try the offenders who committed the international crimes and therefore not bound by the international instruments cited by the defence. This tribunal is a domestic tribunal which is competent to try international crimes.
In respect of incorporating the elements of crimes of ICC, the learned prosecutor submitted that the ICC will not look into the offences committed before 17th July 1998 and the elements of crimes defined by ICC has no retroactive effect so the arguments of the learned counsel for discharge of the accused is liable to be rejected and charges should be framed against the accused person.
Before deciding the matter we are of the view that we should address some of the legal issues which the learned counsel for the defence drew our attention to. At a glance, the defence raised the issue of inadequacy of the definition of crimes, the absence of elements of crimes like in ICC’s Rome Statute, the thresholds of the crimes against humanity, the nexus before crimes against humanity and armed conflict, requirement of knowledge, provision of ICCPR and the Rome Statute and the Vienna Convention on the law of the treaties.
In regard to defintion of crime mentioned in the Act and elements thereof we are of the view that the definitions are quite clear and complete without any ambiguity. The Act was drafted in an era when the crimes enumerated therein were fairly known and understood to the world and were very much part of customary international law. Therefore, we see no reason why should we be trying to find gaps which are not there or try to borrow definitions from fairly recent international tribunals whether the International Crimes Tribunal of Bangladesh not have any such obligations to do so. However the Tribunal may take into account jurisprudential developments from other jurisdictions should it feel so required in the interests of justice.
In regard to the threshold of the crimes against humanity and its to armed conflict and the requirement of knowledge, as stated above, we are of the view that the crimes under the Act are adequate in all aspects and therefore it is not necessary to visit other recent notions developed by the statutes of various international tribunals. However the tribunal may take into account normative developments should it feel so required in the interests of justice.
Regarding submission on Article 14 and 15 of the ICCPR we are of the view that by and large every aspect of article 14 of the ICCPR is converted by the Act and its Rules of Procedure. Moreover the Constitution of Bangladesh also embodies the principles and provision of the Universal Deceleration of Human Rights. Citing the prohibition of Article 15(1) of ICCPR the defence counsel argued the principle against retroactive law which the subsequent Article 15(2) overrides in that the prinple has been made inapplicable in cases of crimes proscribed by general principles of law recognized by the community of nations. It needs to be reiterated that the Act proscribes international crimes that were regarded as crimes under international law long before the Act was enacted.
About observation of the Human Rights Committee as referred by the defence counsel we are of the view that this is a mere observation and not all relevant in the matter of a framing charges against the accused in the present case. Moreover only para 12 of the observation has been referred. Upon perusing the whole documents we are of the view that the facts stated therein are totally different from the facts of this case and therefore not relevant.
As regards the Vienna Convention and other international instruments to which Bangladesh is party to, we are of the view that these instruments are enforceable in our courts if the provisions therefore have been incorporated in the domestic law of Bangladesh. Even in cases where domestic law are or perceived to be inconsistent with the provision of international instruments the national court are obliged to follow the domestic laws and not the international instruments. Moreover in this case, the Act itself being clear and passed by the Parliament after the Liberation War to try the offence of international crimes committed by the perpetrators and that this tribunal being a creation of the said Act too, we are of view that the international instruments of which no legislation has been passed by our Parliament are not binding upon the tribunal. The case of Humberto Leal Garcia the Mexican supports our view. The man was convicted of rape and murder and was sentenced to death by the court and was executed on July 7 2011 in Huntseville, Texas defying the Vienna Convention which the US senate ratified back in 1969 on the ground that no national law has been passed following that convention.
The two cases of the Supreme court of Bangladesh referred to by the learned counsel for the defence also do not state that the international instruments are directly enforceable in our courts not do they state that their provision have precedence over the provisions of domestic law. But if their provisions are incorporated in the domestic law they become enforceable in national court.
Since as said, this tribunal was created by the Act and considering all the facts and laws relating thereto, we reiterate our opinion that this tribunal is very much a domestic tribunal created under the said Act passed by the Parliament of Bangladesh to try given international crimes.
We have perused the formal charge and other documents and statement of witnesses given upon which the prosecution intends to rely upon and carefully considered the submissions made by both the sides on those materials. We are off the opinion that there is sufficient ground to presume that the accused DHS has committed offences under section 3(2) of the Act. We are also of the option that there are no reasons to discharge the accused rather there are numerous grave allegations that the accused to provide answer and as such the said application for discharge is hereby rejected.
We shall not proceed to pass our order on the framed charges against the accused DHS. Before we do so we would like to place on record our acknowledgement of the efforts that they have made so diligently by the learned prosecutor and the learned defence counsels in assisting the Tribunal through their able submission.
We like to state here that we are mindful of the onerous burden the law has imposed on us to dispense justice in this otherwise very significant case to uphold rule of law.
Since we there that there are prima facie case against the accused, the charges are framed against him in the following manner.
Charges:
We, Justice Md Nizamul Huq (Chairman), Justice A.T.M Fazle Kabir (Member) and A.K.M Zaheer Ahmed (Member) of the International Crimes Tribunal hereby charge you accused Delwar Hossain Sayeedi @ Delu @ Dellya @Abu Nayeem Mohammad Delwar Hossin @ Allama Delwar Hossain Sayeedi, son of late Yusuf Ali Sikder of village South Khali, police station-Indurkani, District-Pirojpur at present 914 Shaheed Bag, Police station-Motijheel, District-Dhaka.
Charge No 1 - That on 4 May, 1971, you as a member of a group of individuals as well as a member of Peace (santi) Committee gave secret information to the Pakistan army in the morning about a gathering of some people behind the Madhya Masimpur bus-stand and after their arrival you took them to the back of the Madhya Masimpur bus stand under Pirojpur Sadar police station and in a planned way you killed 20 unnamed civilian people by firing which is murder as crimes against humanity
Thus you have committed the said crime of murder as crimes against humanity punishable under section 3(2)(a) of the International Crimes (Tribunal) Act 1973, hereinafter referred to as the Act.
Charge no 2. That on 04. 05.1971 in broad daylight, you along with your accomplices accompanied with Pakistani army went to Masimpur Hindur Para under Pirozpur Sadar Police Station and by raiding those houses of Hindu people looted their goods and destroyed their houses by setting fire. On being frightened while the unnamed civilian people started to flee away then you and your team members opened fire on them indiscriminately pursuant to a pre-arranged plan and thereby killed 13 (thirteen) civilians, namely Sarat Chandra Mondol, Bijoy Mistri, Opendranath, Jogendranath Mistri, Surendra Nath Mistri, Motilal Mistri, Jogeshwar Mondol, Suresh Mondol and 5 others unidentified civilian people with intent to destroy in whole or in part members of Hindu religious group which amounts to genocide. The act of looting goods and destroying houses by fire are considered as persecutions as crimes against humanity.
Thus you have committed the said crimes of genocide and persecution punishable under section 3(2)(c) (i) and 3(2)(a) of the Act.
Charge no 3. That on the same day on 04. 05. 1971, you led a team of Pakistan army to Masimpur Hindu Para, and looted goods from the houses of Monindra Nath Mistri and Suresh Chandra Mondol and completely destroyed their houses by setting fire. You also directly took part in causing large-scale destruction by setting fire on the roadside houses of villages named Kalibari, Masimpur, Palpara, Sikarpur, Razarhat, Kukarpara, Dumur Tola, Kalamtola, Nawabpur, Alamkuthi, Dhukigathi, Parerha and Chinrakhali and those Act are considered as persecution against civilian population on religious grounds.
Thus you have committed the said crimes of persecution punishable under section 3(2)(a) of the Act.
Charge no 4. On 4 May, 1971, you with your accomplices accompanied with Pakistani army in a planned way surrounded the Hindu para located in front of Dhopa Bari and behind the LGED Building under Pirozpur Sadar Police Station with intent to destroy the members of Hindu community, opened fire indiscriminately on the unnamed Hindu Civilians and therby killed Debendra Nath Mondol, Jogendranath Mondol, Pulin Behari and Mukunda Bala by gun-shot with intent to destroy a religious group and such acts amount to Genocide.
Thus you have committed the said crimes of genocide punishable under section 3(2)(c)(i) of the Act.
Charge no 5. That Mr Saif Mizanur Rahman, the then deputy magistrate of Pirozpur Sub-division (now district), organised Sarbo Dalio Sangram Parishad to inspire the people for participating in the War of Liberation. Knowing this fact you declared publicly to arrest him for his pro-liberation activities. On 5th May, 1971, you along with your associate Monnaf (now deceased), the member of Peace (santi) Committee, accompanied with some member of Pakistani Army riding on a military jeep went to Pirozpur Hospital at noon where Mr Saif Mizanur Rahmen was into hiding.
In order to execute the pre-arranged plan, one of you, identified him to the Pakistan army who picked him up from the hospital to the bank of river Baleshwar. As a part of the plan on the same date and time, Mr Foyezur Rahman Ahmed, Sub-Divisional Police Officer, and Mr Abdur Razzak (S.D.O in charge of Pirojpur), were also arrested from their work place and taken to the bank of the said river. You as a member of the killer party were present there and all the three civilian government officers were gunned down and their dead bodies were thrown into the river Boleshwar. You directly participated and abetted in the acts of abduction and killing of those three officers which is crimes against humanity and abatement of killing.
Thus you have committed the said crimes punishable under section 3(2)(a) and 3(2)(g) of the Act.
Charge no 6. That on 7 May, 1971, you led a team of of Peace (Santi) Committee to receive Pakistani Armyat Paterhat Bazar under Pirozpur Sadar Police Station then you identified the houses and shops of the people belonging to Awami League, Hindu Community and supporters of the Liberation War. You as one of the perpetrators raided those shops and houses and looted away valuables, including 22 seers of gold and silver from the shop of Makhanlal Shaha. These acts are considered as crime of persecution on political and religious grounds as crimes against humanity.
Thus you have committed the said crimes of persecution under section 3(2)(a) of the Act.
Charge no 7. That on 8th May, 1971 at about 1.30 p.m., you led a team of armed accomplices accompanied with Pakistani Army raided the house of Shahidul Islam Selim, son of Nurul Islam Khan of village Baduria under Pirozpur Sadar Police Station and you identified Nurul Islam Khan as an Awami League leader and his son Shahidul Islam Selim a freedom-fighter then you detained Nurul Islam Khan and handed over him to Pakistani army who tortured him and after looting away goods from his house, you destroyed that house by setting fire. The Act of destruction of the house by fire is considered as crime of persecution as crimes against humanity on political ground and you also abetted in the torture of Nurul Islam Khan by the Pakistan Army.
Thus you have committed the said crimes punishable under section 3(2)(a) and 3(2) g) of the Act.
Charge No. 8. That on 8th May 1971 at about 3.00 pm under your leadership you and your accomplices accompanied with Pakistan army raided the house of one Manik Posari of village-Chitholia under Pirozpur Sadar Police Station and caught his brother Mofizuddin and one Ibrahim @ Kutti therefrom. At your instance other accomplices after pouring kerosene oil on five houses, those were burnt to ashes causing a great havoc. On the way to Army camp, you instigated Pakistani army who killed Ibrahim @ Kutti by gunshot and the dead body who dumped near a bridge, then Mofiz was taken to the army camp and was tortured. Thereafter, you and others set fire on the houses of Hindu community at Paterhat Bandar causing huge devastations. The acts of looting goods and setting fire on dwelling houses are considered as persecution as crimes against humanity on religious ground. You directly participated in the occurrences of abduction, murder and persecution which are identified as crimes against humanity.
Thus you have committed the said crimes punishable under section 3(2)(a) of the Act.
Charge no 9. That on 02.06.1971 at about 9.00 am under your leadership with your armed associates accompanied with Pakistani Army raided the house of Abdul Halim Babul of village Nolbunia under Indurkani Police Station and looted away valuables, then set the house on fire to ashes. The acts of burning house to ashes and looting goods therefore are considered as persecution as crimes against humanity.
Thus you have committed the said crimes punishable under section 3(2)(a) of the Act.
Charge No 10: - That on the same day ie 02.06 .1971, at about 10.00 am, under your leadership with your armed associates accompanied with Pakistani Army raided the Hindu Para of village-Umedpur under Indurkani Police Station you burnt 25 houses including houses of Chitta Ranjan Talukder, Jahar Talukder, Horen Tagore Anil Mondol, Bisabali, Satish Bala and others. At one stage, Bisabali was tied to a coconut tree and at your insistence Bisabali was shot to dead by your accomplice. The act of burning dwelling houses of unarmed civilians is considered as persecution. You directly participated in the acts of burning houses and killing of Bisabali which is persecution and murder within the purview of crimes against humanity.
Thus you have committed the said crimes punishable under section 3(2)(a) of the Act.
Charge no 11: that on the same day i.e on 02.06.1971, you led a team of Peace (Shanti) Committee members, accompanied with Pakistani occupied forces raided the houses of Mahbubul Alam Howlader (freedom-fighter) of village-Tengra Khali village under Indurkani Police Station and you detained his elder brother Abdul Mazid Howlader and tortured him. Thereafter you looted cash money, jewellery and other valuables from their houses and damaged the same. You directly participated in the acts of looting valuables and destroying houses which are considered as persecution on political grounds and also torture.
Thus you have committed the said crimes of torture and persecution punishable under section 3(2) of the Act.
Charge no 12:- That during liberation war on one day a group of 15/20 armed accomplices under your leaderhip entered the Hindu Para of Parerhat Bazar under Pirozpur Sadar Police station and captured 14 Hindus namely Horolal Malakear, Aoro Kumar Mirza, Taronikanta Sikder, Nando Kumar Sikder and others, all were civilians and supporters of Bangladesh independence. You tied them with a single rope and dragged them to Pirojpur and handed over them to Pakistani military where they were killed and bodies were thrown into the river. This act was directed against a civilian population with intent to destroy in whole or part of a religious group which is genocide.
Thus you have commited the said offence of genocide punishable under section 3(2) (c)(i) of the Act.
Charge No 13:-. That about 2/3 months after the start of the Liberation War, on one night under your leadership some members of Peace Committee accompanied with the Pakistani Army raided the house of Azhar Ali of village Nalbunia under Pirojpur Sadar Police Station and then caught and tortured Azhar Ali and his son Shaheb Ali. Thereafter you abducted Shaheb Ali and ultimately he was taken to Pirozpur and after killing him threw his dead body in the river. The acts of murder, torture and abduction as crimes against humanity.
Thus you have committed the said crimes punishable under section 3(2)(a) of the Act.
Charge no 14:- That during the last part of the Liberation War you led a team of Razakar Bahini consisting of 50 to 60 in the morning of the day of occurrence in a planned way you attacked Hindu Para of Hoglabunia under Pirozpur Sadar Police Station. On seeing them, Hindu people managed to flee away, but Shefali Gharami the wide of Modhu Sudhan Gharami could not flee away, then some members of Razakar Bahini entering into her room raped Shefali Gharami. Being the leader of the team you did not prevent them in committing rape upon her. Thereafter, you and members of your team set fire on the dwelling houses of the Hindu Para of village Hoglabunia resulting complete destruction of houses of the Hindu civilians. The act of destruction of houses in the Hindu Para by burning in a large scale is considered a crime of persecution on religious ground and the act of raping both as crimes against humanity.
Thus you have committed the said crimes punishable under section 3(2)(a) and 3(2)(g) and 3(2)(h) of the Act.
Charge No 15:- That during the last part of liberation war, 1971 you led 15/20 armed Razakers under your leadership and entered into the village-Hoglabunia under Pirozpur Sadar Police Station, caught 10 (ten)
Hindus namely Toroni Sikder, Nirmol Sikder, Shyamkanto Sikder, Banikanto Sikder, Horolal Sikder, Prokash Sikder and others. You then tied all of them with a single rope with intent to kill and dragged them to Pirojpur and handed over them to the Pakistani army where they were all were killed and the bodies thrown in the river. The conduct was directed against a population with intent to destroy a religious group which is genocide.
Thus you have committed an offence of genocide, punishable under section 3(2)(c)(i) of the Act.
Charge no 16. That during the time of liberation War in 1971, you led a group of 10-12 armed Razakars and Peace Committee members and surrounded the house of Gowranga Saha of Parerhat Bandar under Pirozpur Sadar Police Station. Subsequently, you and others abducted (i) Mohamya (ii) Anno Rani (iii) Komol Rani, the sisters of Gowrangha Saha and handed them over to the Pakistan army at Pirojpur where they were confined and raped for three days before release. You are directly involved in abetting the offence of abduction, confinement and rape as crimes against humanity.
Thus, you have committed an offence of abduction, confinement and rape which are punishable under section 3(2)(a) and 3(2)(g) of the Act.
Charge no 17:- That during the time of liberation war in 1971, you along with other armed Razakars kept confined Bipod Shaha's daughter Vanu Shaha at Bipod Shaha's house at Parerhat under Pirozpur Sadar Police Station and regularly used to go there to rape her. This was commited by force or by threat and directed against a civilian population.
Thus you have committed an offence of rape under section 3(2)(a) of the Act
Charge no. 18: That during the liberation War, one Vagirothi used to work in the camp of the Pakistani army. On one day, after a fight with the freedom fighters, and at the instance of you, said Bhagirothi was arrested on charge of passing information to the freedom fighters and was tortured and then after taking her to the bank of river Boleshwar she was killed and the dead body was thrown into the river.
Thus you have committed an offence of abetment of torture and murder under section 3(2) (a) (g) of the Act.
Charge no 19:- That during the period of Liberation War starting from 26.03.1971 to 16.12.191 you being a member of Razakar Bahini, by exercising your influence over Hindu community of the then Pirojpur subdivision (now Pirozpur District) converted the following Hindus to Muslims by force namely (1) Modhusudan Gharami (2) Kristo Saha (3) Dr Ginesh Saha (4) Azit Kumar Sil (5) Bipod Saha (6) Narayan Saha, (7) Gowranga Pal (8) Sunil Pal (9) Narayan Pal (10) Amullya Hawlader, (11) Hari Roy, (12) Santi Roy Guran, (13) Fakir Das and (14) Tina Das, (15) Gournaga Saha (16) his father Haridas, his mother and three sisters (18) Mahamya, (19) Annorani and (20) Kamalrani and other 100/150 Hindu of village Parerhat and other villages under Pirozpur Sadar Police Station and you also compelled them to go to the mosque to say prayers. The act of compelling somebody to covert his own religious belief to another religion is considered as an inhuman act which are treated as crimes against humanity.
Thus you have committed the said crimes punishable under section 3(2)(a) of the Act.
Charge no 20. That one day in the last part of November, 1971 you got the information that thousands of civilian people were fleeing to neighbour country India in order to save their lives. Then under your leadership, a Razakar Bahini consisting of 10-12 armed forces in a planed way, attached the houses of Talukdar Bari in the village-Indurkani village under Indurani Police Station and detained total 85 persons and looted away goods from therefrom. Then you dragged them to local Razaker camp. Except 10-12 person, the rests of the persons were released on taking bribe negotiated by Fazlul Huq, a member of Razakar Bahini. Male persons were tortured and female persons including Dipali, daughter of Khangendra Nat Saha Talukder, Niva Rani, wife of Khagendra Nath Saha Talukdera, and Maya Rani daughter of Rajballav Saha and other were raped by Pakistan Army deployed on the camp. You directly participated in the acts of abduction, torture and abated the offence of rape which fall within the purview of the crimes against humanity.
Thus you have committed the said crimes punishable under section 3(2) (a) of the Act
The aforesaid charge of crimes brought against you are punishable under the provision of section 3(2) of the Act and within the cognisance and jurisdiction of this tribunal. And we hereby direct you to be tried by this Tribunal on the said charges. You have heard and understood the aforesaid charges.
Q: Are you guilty or Not guilty
The charges are read over and explained to the accused in dock who pleaded not guilty and claimed to be tried.
To 30-10-2011 for opening statement of the prosecution and examination of the prosecution witnesses. The trial shall be continuing on every working days until further order. The defence counsel is also directed to submit a list submit a list of witnesses, if any, along with four sets of documents thereor, which the defence intends to rely upon by the date fixed.
After the charges were read out Sayedee was told to come to the witness box at the front of the court, and was asked whether he underttood what was said in English. He said that he had, so there was no need to say it in Bangla. He asked whether he could speak to his lawyer, but the Tribunal chairman said that he just had to say whether or not he was guilty or not and it was not necessary to consult. Sayedee’s lawyer was urging the tribunal chairman to allow him to speak to Sayedee.
Sayedee then said that he understand that he had been ‘subjected to a political vendetta.’ He then asked the tribunal if he could say something very briefly. It agreed and he said the following, which is an approximate summary
‘I think what I have been facing is the greatest lie of this century and I have been subjected to the most atrocious political vendetta. When I was arrested there was one respected prosecutor called me in a twisted name. I really hope that the tribunal will say something against the prosecution as they twisted my name. I was hoping that you would ask the prosecutor, where did you find this. In my birth certificate, in my education certificate, in my passport or even in the parliament, my name is used, but you did not do anything. In your order you used the same name as they had used, but the Koran says, ‘Please don't call any human with twisted name.’He then pleaded 'not guilty'
The judges are regarded as a very respected person even in the eye of Allah. On judgment day there are seven kinds of people who under the direct shadow of Allah’s mercy and judges are one of them.
There are two things that a judge has to possess two qualities. One is his conscience and another is transparency.
What I want to say is that after the great liberation war of 1971 there had been no allegations against me even one decade after that. When I wanted to join the Jamaat-e-Islami shura in 1980, then the allegation started to pour in that I was involved in peace committee and that I was involved in war crimes. I have presented a statement about these allegation in parliament and the present Prime minister was also the primeminister then was present. Not a word of my twenty minute statement was expunged. I am not a razaker: probably the ones that are razkers are the one who survived in india, the India razakers..
Whenever there were any allegations like that against me I took this matter to the court .
There have been allegations against me for crimes against humanity. I have been speaking forcefully for humanity for over the last half a century. The formal charge that has been submitted to you , I believe every word, every line, every sentence is a lie.
I was never a Razaker, let alone be a commander of razaker and peace committees, and the whole trial is just a vindictive behavior of a political grouping.
Every line is lie, Every witness statement is a lie.
Those who said those lies, the Koran says about them. ‘Those who give false statement they don't have the fear of god inside them.’
Hon tribunal all the allegation presented against me are really unfortunate. I was never involved in such kinds of activities. I was never a Razaker, never a collaborator with the Pakistan army. I didn't have any kind of involvement with the pakistan army not even for a minute. I dis not even meet them or see them for even a day.
So this is a complete lie.
So I plead to the tribunal to relieve me of this false case and I believe that you ensure me to get a fair trial..
I have this line from the Koran with me. And it says they conspire against you and Allah says that and it was so grave that even the mountains were trembling.
I am a very non-violent human being. Those people who brought those allegations against me, Allah will take care of them and they will be severe curse of Allah upon them and they are going to be taken down by Allah. And the whole world will look and see how they perish. I am completely innocent. They are lies, lies, lies.
One of the judges then said the Sayedee said that though charge has been framed it does not mean that you have committed those crimes, you can present your case, your witnesses etc
Saturday, October 15, 2011
27 Sep 2011: Final charge framing hearing
This hearing continues on from 25 September with the prosecutor, Haider Ali, setting out why the tribunal should charge-frame the accused, Delwar Hossain Sayedee.
Before the prosecutor started, the defence team asked whether Sayedee could use the toilet upstairs. The chairman said that the upstairs toilet was not available as belonged to a different organisation. The defence team also noted that the police officer was not allowing the defence team to speak to the accused during the hearing, and the chairman said that he would deal with this.
The tribunal chairman then asked whether the reporter of Daily Manobjamin was present in court. He said that that the paper had reported that ‘the prosecution has agreed to the points raised by the defence’. This type of reporting should not be allowed, he said.
Proscutor application in favour of charge-framing, continues
Ali started by criticising the defence team for failing to quote Article 15(2) of the International Convention on Civil and Political Rights in its application, claiming that they were 'not honest'. The chairman asked Ali not to use these words but that they made an incorrect citation.
Ali referred to article 61 of the Rome Statute and claimed that it was in full conformity with section 16(1) of the 1973 Act and rule 35 of the rules of procedure and there was nothing inconsistent between Bangladesh law and the Rome statute.
He read out from the heading of the discharge application and said that nowhere does it say that Sayedee was innocent of the crimes.
In relation to the issue of the accused's knowledge, he said that the accused should not be discharged for any failure to mention the requisite knowledge in the charge, saying that this could be clarified or corrected at the time of framing charge.
The also argued that if there was any defect regarding classification of the offences or if the charges remain unspecified then this could be corrected at the time of framing charge by the tribunal, and that these objections cannot be considered as grounds for discharge.
He argued that the prosecution was working in full conformity with the international instruments.
The chairman stated that the defence lawyers claim was that the definitions of crimes are inadequate and that no trial can proceed on unspecified or vague offences. He asked what was the defence's reply to that?
Ali again said that there was no contradiction between the international laws as referred to by the defence and our domestic law.
He then read out Rule 35 of the Rules of Procedure and section 16 of the Act and said that the prosecution had already submitted formal charge, investigation report, supporting documents and witness statements, and that the Tribunal shall frame the charge on the basis of these papers and documents.
He said that the prosecution has specified time, date and places of occurrences in the formal charge and filed sketch maps of the places of occurrences and that everything is clear.
Judge Jahir Ahmed then said that the defence had raised the point that though some details are specified there is much that is not specified in the formal charge, 'For example he says that you have alleged that the accused destroyed another 25 houses, but you do not identify them.'
Ali said that many allegations are specified, but we are unable to find out specific information on some allegations - and that 'these will be given by witnesses in the dock.' He said that this information was not necessary to frame charges. There is no legal provision that states that due to these defects the accused should be discharged. The question is, he said, 'is which offences should be charge framed. The accused can only be discharged if there is no evidence that discloses any offence.'
Ali again said that no where in the discharge application does the accuse claim that he is innocent. The chairman responded by saying that there is no need at this stage for the accused to say whether he is innocent or not.
He said that the place, district, and village was specifically mentioned for all counts.
Ali argued that if the accused was innocent he should have said that in the discharge petition. The chairman said that he would need to do that after any charge is framed.
Ali then said that in some counts there are no eye witnesses, pointing out the to count two relating to the killing of Vagiroghi. He described how Vagirothi was brutally killed, and that this was reported in 1972 and the newspaper cutting is submitted in the prosecution document. He said that his son is a hearsay witness who is saying that the accused is involved with the killing. In trial, he argued that the prosecution, would show how and when the accused did this. The defence has not denied that the incident had taken place.
Ali then discussed section 4 of the 1973 Act about command/responsibility. He said that there were witnesses, other evidence substantiated by other circumstances.
'Was the accused involved in the crime or did he contribute to the offence? Was the offence done by his troops under him? The evidence we have is sufficient.
He said that the investigation officer had recorded evidence with the accused under section 8 of the Act and during the questioning in the safe house this matter was clarified with the accused and that statement had also been placed with the lordships.
The prosecution, he said, had substantiated the offence by statements of the witness, documents, evidences and sketch maps and that unless there is a trial where evidence is taken this cannot be proved.
A tribunal member then asked Ali that although the offence may have been disclosed in the formal charge, how can he link the accused with the offence.
Ali responded by saying that that will be clear from the prosecution witness statements. He said that there may be vagueness on dates and time, but the accused cannot be discharged for that. Sufficient materials are before the court to frame charge, he said. 'Every link is there' he argued.'Without a trial, without looking at the evidence, the tribunal cant make a decision.'
Ali then comments on a number of the legal authorities that the defence had mentioned.
- in relation to one concerning the applicability of international law, he said that this was decided in the context of a company matter and as such not relevant in the present case. He said that when the domestic law was clear and it conflicted with international law, the domestic law should be applied. The tribunal asked, 'You submission is that the offences are clear, so you do not need to go outside the law.'
- in another case he said was made in the context of a child execution case and does not apply in the present case.
Ali said that article 15(1) and (2) of the ICCPR was in fact helping the prosecution.
The chairman then asked Ali whether he wanted to say that if there is any difference between domestic and international law then the court is bound to follow the domestic law?
Ali said that the court need not look at other laws if the domestic law is clear.
Chairman then asked what should happen if there was any difference in the laws, should they follow the covenant which is signed by the government? He then said that a treaty is only signed by the relevant ministry - it is never passed by the parliament. 'So we are not bound by the decision of any ministry as they are not the peoples’ representative. We must follow the law passed by the parliament as this comes from the representative of people.' Ali said that he agreed and the case law mentioned by the defence lawyers also made this point.
Justice Jahir then asked whether there had to be an 'international armed conflict’ in order to prove the offence of Crime against Humanity? Ali said that he did not want to give any opinion on that. Jahir then said that that it should not be required since it is not part of domestic law.
Ali then said that he agreed that there was no such requirement. He said that section 3(2)(a) of the act defines crimes against humanity, that it is an independent section and need not be explained by any other law. 'The offences can be defined independently,' Ali said.
The chairman then asked whether all the offences in the act were independent provisions.
Ali said that these were all independent provisions and need not be explained with reference to any international law.
Jahir said that the offences are all the same, 'The only difference is in terminology. Here we say ‘Charge’ and they call it ‘Indictment’ like we say ‘football’ and in USA it is called ‘Soccer’.'
Defence response
Tajul Islam argued that the points which the defence have raised must be dealt with at this point in the proceedings. 'We have raised fundamental questions about law and fact. They have to be dealt with now,' he said. 'They demand clarification. There needs to be very clear definition of the law and fact. This is not here at the moment. We are at a very important stage in proceedings. If not frame charge properly then trial will be vitiated. If charges not framed then the accused should be discharged.'
The chairman said that according to the prosecution this is not the time for these points to be dealt with
Islam responded by asking how can the trial proceed if the charge is unspecified. The prosecution cannot fill up the gaps during trial. 'Is there any scope in our law?' he asked. 'Charge must be framed properly.' He said that no trial can take place unless law and facts are clear and specified.
He said that there was a factual vagueness which has not been addressed by the Prosecutor. In count 2, involving the killing of Vagirothi, Islam said that this is a brutal incident. 'But the prosecution did not specify how the accused was involved.' he said.'The lordships have raised this question very strongly already. What is the relationship?'
He argued that it was also not clear what is the mode of liability alleged against his client. 'This must be defined before framing charge'
The chairman told Islam that these points have already been raised and they dont need to be repeated. 'We have already taken notes of your arguments,' he said.
He then said, when framing charges, the tribunal cannot go beyond the charge submitted by the prosecution. It is not for the tribunal to prepare the charge by themselves. 'It is absolute duty of the prosecution to prepare charge, he said.
Islam said that if the tribunal does this it will be doing the work of the prosecutor.
'Is there anywhere in the world who can show that the it is the duty of the the tribunal to frame charges?' he asked.
The chairman argued that in Bangladesh it is the court that prepares and frames the charge, but Islam said that the criminal procedural code should not be considered.
The chairman pointed to rule 38(1) which he said showed that the tribunal was responsible for framing the charge. 'The prosecution will prepare the charge and the tribunal will after consideration decide what is charge frame.' he said.
Islam responded by saying that in no international tribunal is the charge prepared by the Judges. 'I will show you the rules of other tribunal' he said.
The chairman said that Islam should not show these procedures as we will follow this tribunal's Rules of Procedure which allows the tribunal to prepare and frame charge.
Islam argued that the tribunal's Rrules of procedure do not allow the judges to prepare the charge, and referring to the other international tribunals said that once a prima facie case has been found, the prosecutor should draft the indictment.
The chairman asked Islam who will determine in our law the prima facie case? It is us – if so we will prepare the charge. He asked Islam whether after determination of prima facie case the tribunal should send it back to the prosecutor to draft the charge.
Islam argued that under rule 19 of the Bangladesh tribunal's rules of procedure, it is the chief prosecutor who needs to satisfy himself about the prima facie case first and only if he is satisfied can he proceed with formal charge. He referred to section 18(4) of the ICTY statute.
The chairman said that this international law was not applicable and that in Bangladesh law the prosecution is required to place the charge in the form of an application and the tribunal will then consider it and can prepare charge if required.
Islam again asked the tribunal why it was taking over the responsibility of the prosecutors. 'You can frame, but not prepare,' the formal charge, he said.
The chairman denied this and said that framing of charges was the tribunal's responsibility and that they will do this. He said that the 'formal charge is in the form of a petition'.
Islam then made a point about the investigation report. 'Is there any investigation report with the tribunal?' he asked. He said at the time of taking formal charge the tribunal should taken into account consideration of all documents.
Islam said, the investigation report is supposed to be given to the defence. 'It is a game of hide and seek'.
He pointed to rule 18 of the rules of procedure which states, 'Upon receipt of report of investigation of offence(s), the Chief Prosecutor or any other Prosecutor authorized by him shall prepare a formal charge in the form of a petition on the basis of the papers and documents and the evidences collected and submitted by the Investigation Officer and shall submit the same before the Tribunal.'
And then rule 19 which states 'If any Investigation Report does not disclose a prima facie case against an accused the Chief Prosecutor may initiate further investigation or stop the said investigation.'
[I think the point that the defence lawyer was trying to make was the importance of the investigation report which the defence did not have.]
Islam then argued that the prosecutors had admitted that there are some vagueness in the charge, but they want to cure them during trial. 'There is no scope to cure the gaps in trial,' he said. 'If there is vagueness, unless they are specified, then charge cannot be framed?'
He said that what the prosecution was arguing was 'against the law, it was misconceived'
Islam said that subsequent to the formal charge if any new evidence is found then the Tribunal may frame the charge again, but that if the existing charge is vague then the accused should be discharged.
He read out section 222 of the Bangladesh Criminal Procedure Code which states: 'Particulars as to time, place and person: The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.'
Islam, said 'Each time was are telling you' about the vagueness.
The chairman said, 'we will consider everything'
Islam then said that the prosecution admits that there is no inconsistency between domestic law and international law. He then said that the prosecutor appears to be supporting the argument of the defence through his submissions on Article 15(2) of ICCPR which provides that a person can be tried in accordance with the law that existing at the time of commission of crime.
Islam then said that the tribunal had inaccurately stated that the international covenants are not binding since these are signed by the ministers and not passed in parliament. He pointed to article 7 and 145(A) of the constitution to point bout that an international treaty has binding authority.
Justice Jahir then pointed to an Americna court case where he said that a US court had decided that the court was not bound by the Vienna Convention even though the USA was signatory to this convention.
Islam argued that it is not relevant what the US courts have done.
Jahir responded by saying that he was quoting the case to show that these treaties are 'not binding on this court'.
Islam then said that there was wholesale lack of mens rea [mental element of the crime i.e intention] in the formal charge and argued that as a result the tribunal cannot frame charge on this formal charge.
Islam then moved onto modes of liability and said that the prosecution had not identified in which of the counts they would like to bring in the concept of command responsibility. Islam argued that without this specification it was not possible for the accused to prepare his defence.
Islam then discussed insufficient evidence and said that the tribunal cannot 'fill up the lacuna of the prosecutor.'
The chairman said that the tribunal would not do that.
Prosecutor Zead Al-Malum stood up and said that the prosecutors also do not want the tribunal to feel up any gaps.
Islam said that the prosecutor had claimed that three writ petitions have been filed challenging the 1973 Act and the High Court Division rejected all of them. 'It is our submission that there is no scope to challenge this Act before the High Court Division or before any authority. This Tribunal is the only authority to raise any deficiency in the Act,' he said.
Islam said that if the tribunal found the law to be defective the accused must be discharged.
The prosecution has already admitted that if there is any deficiency in our law then we can use international instruments for assistance. But the prosecution did not specify how this can be done.
Islam said that the offences need to be defined for the interest of all the parties. He said that crimes against humanity was merely a list of offences. 'What is murder, extermination ... Is this set out in the law? Are the elements of the offence defined in the Act. In the ICTY this is defined in the Act, but here it is not.' He said that the 'offence of crimes against humanity and genocide still need elements to be defined, for the defence as well as for the tribunal.'
He also said that the Act did not mention the nexus between the offence of crimes against humanity and an international armed conflict.
He then moved onto the definition of Genocide. He said that there was an error in that the words ‘such as’ should actually be ‘as such’.
The chairman has said that it is not the court's duty to covert these words. 'We will go by our Act. We will take the meaning as it comes by the word ‘such as’.'
Islam complained that the act lacks definition.
Islam said that the prosecution had claimed that they have submitted the record of what happened at the safe home to the tribunal for consideration. This should not be done as they are inadmissible. Moreover they did not give us copy.
The chairman said that the tribunal had not found such a copy and that Ali must have been mistaken saying that.
Islam completed his arguments by summarising his points and he concluded by saying that they 'applied for the formal charge application to be discharged.'
Court was adjourned until 3 October for order on charge-framing.
Before the prosecutor started, the defence team asked whether Sayedee could use the toilet upstairs. The chairman said that the upstairs toilet was not available as belonged to a different organisation. The defence team also noted that the police officer was not allowing the defence team to speak to the accused during the hearing, and the chairman said that he would deal with this.
The tribunal chairman then asked whether the reporter of Daily Manobjamin was present in court. He said that that the paper had reported that ‘the prosecution has agreed to the points raised by the defence’. This type of reporting should not be allowed, he said.
Proscutor application in favour of charge-framing, continues
Ali started by criticising the defence team for failing to quote Article 15(2) of the International Convention on Civil and Political Rights in its application, claiming that they were 'not honest'. The chairman asked Ali not to use these words but that they made an incorrect citation.
Ali referred to article 61 of the Rome Statute and claimed that it was in full conformity with section 16(1) of the 1973 Act and rule 35 of the rules of procedure and there was nothing inconsistent between Bangladesh law and the Rome statute.
He read out from the heading of the discharge application and said that nowhere does it say that Sayedee was innocent of the crimes.
In relation to the issue of the accused's knowledge, he said that the accused should not be discharged for any failure to mention the requisite knowledge in the charge, saying that this could be clarified or corrected at the time of framing charge.
The also argued that if there was any defect regarding classification of the offences or if the charges remain unspecified then this could be corrected at the time of framing charge by the tribunal, and that these objections cannot be considered as grounds for discharge.
He argued that the prosecution was working in full conformity with the international instruments.
The chairman stated that the defence lawyers claim was that the definitions of crimes are inadequate and that no trial can proceed on unspecified or vague offences. He asked what was the defence's reply to that?
Ali again said that there was no contradiction between the international laws as referred to by the defence and our domestic law.
He then read out Rule 35 of the Rules of Procedure and section 16 of the Act and said that the prosecution had already submitted formal charge, investigation report, supporting documents and witness statements, and that the Tribunal shall frame the charge on the basis of these papers and documents.
He said that the prosecution has specified time, date and places of occurrences in the formal charge and filed sketch maps of the places of occurrences and that everything is clear.
Judge Jahir Ahmed then said that the defence had raised the point that though some details are specified there is much that is not specified in the formal charge, 'For example he says that you have alleged that the accused destroyed another 25 houses, but you do not identify them.'
Ali said that many allegations are specified, but we are unable to find out specific information on some allegations - and that 'these will be given by witnesses in the dock.' He said that this information was not necessary to frame charges. There is no legal provision that states that due to these defects the accused should be discharged. The question is, he said, 'is which offences should be charge framed. The accused can only be discharged if there is no evidence that discloses any offence.'
Ali again said that no where in the discharge application does the accuse claim that he is innocent. The chairman responded by saying that there is no need at this stage for the accused to say whether he is innocent or not.
He said that the place, district, and village was specifically mentioned for all counts.
Ali argued that if the accused was innocent he should have said that in the discharge petition. The chairman said that he would need to do that after any charge is framed.
Ali then said that in some counts there are no eye witnesses, pointing out the to count two relating to the killing of Vagiroghi. He described how Vagirothi was brutally killed, and that this was reported in 1972 and the newspaper cutting is submitted in the prosecution document. He said that his son is a hearsay witness who is saying that the accused is involved with the killing. In trial, he argued that the prosecution, would show how and when the accused did this. The defence has not denied that the incident had taken place.
Ali then discussed section 4 of the 1973 Act about command/responsibility. He said that there were witnesses, other evidence substantiated by other circumstances.
'Was the accused involved in the crime or did he contribute to the offence? Was the offence done by his troops under him? The evidence we have is sufficient.
He said that the investigation officer had recorded evidence with the accused under section 8 of the Act and during the questioning in the safe house this matter was clarified with the accused and that statement had also been placed with the lordships.
The prosecution, he said, had substantiated the offence by statements of the witness, documents, evidences and sketch maps and that unless there is a trial where evidence is taken this cannot be proved.
A tribunal member then asked Ali that although the offence may have been disclosed in the formal charge, how can he link the accused with the offence.
Ali responded by saying that that will be clear from the prosecution witness statements. He said that there may be vagueness on dates and time, but the accused cannot be discharged for that. Sufficient materials are before the court to frame charge, he said. 'Every link is there' he argued.'Without a trial, without looking at the evidence, the tribunal cant make a decision.'
Ali then comments on a number of the legal authorities that the defence had mentioned.
- in relation to one concerning the applicability of international law, he said that this was decided in the context of a company matter and as such not relevant in the present case. He said that when the domestic law was clear and it conflicted with international law, the domestic law should be applied. The tribunal asked, 'You submission is that the offences are clear, so you do not need to go outside the law.'
- in another case he said was made in the context of a child execution case and does not apply in the present case.
Ali said that article 15(1) and (2) of the ICCPR was in fact helping the prosecution.
The chairman then asked Ali whether he wanted to say that if there is any difference between domestic and international law then the court is bound to follow the domestic law?
Ali said that the court need not look at other laws if the domestic law is clear.
Chairman then asked what should happen if there was any difference in the laws, should they follow the covenant which is signed by the government? He then said that a treaty is only signed by the relevant ministry - it is never passed by the parliament. 'So we are not bound by the decision of any ministry as they are not the peoples’ representative. We must follow the law passed by the parliament as this comes from the representative of people.' Ali said that he agreed and the case law mentioned by the defence lawyers also made this point.
Justice Jahir then asked whether there had to be an 'international armed conflict’ in order to prove the offence of Crime against Humanity? Ali said that he did not want to give any opinion on that. Jahir then said that that it should not be required since it is not part of domestic law.
Ali then said that he agreed that there was no such requirement. He said that section 3(2)(a) of the act defines crimes against humanity, that it is an independent section and need not be explained by any other law. 'The offences can be defined independently,' Ali said.
The chairman then asked whether all the offences in the act were independent provisions.
Ali said that these were all independent provisions and need not be explained with reference to any international law.
Jahir said that the offences are all the same, 'The only difference is in terminology. Here we say ‘Charge’ and they call it ‘Indictment’ like we say ‘football’ and in USA it is called ‘Soccer’.'
Defence response
Tajul Islam argued that the points which the defence have raised must be dealt with at this point in the proceedings. 'We have raised fundamental questions about law and fact. They have to be dealt with now,' he said. 'They demand clarification. There needs to be very clear definition of the law and fact. This is not here at the moment. We are at a very important stage in proceedings. If not frame charge properly then trial will be vitiated. If charges not framed then the accused should be discharged.'
The chairman said that according to the prosecution this is not the time for these points to be dealt with
Islam responded by asking how can the trial proceed if the charge is unspecified. The prosecution cannot fill up the gaps during trial. 'Is there any scope in our law?' he asked. 'Charge must be framed properly.' He said that no trial can take place unless law and facts are clear and specified.
He said that there was a factual vagueness which has not been addressed by the Prosecutor. In count 2, involving the killing of Vagirothi, Islam said that this is a brutal incident. 'But the prosecution did not specify how the accused was involved.' he said.'The lordships have raised this question very strongly already. What is the relationship?'
He argued that it was also not clear what is the mode of liability alleged against his client. 'This must be defined before framing charge'
The chairman told Islam that these points have already been raised and they dont need to be repeated. 'We have already taken notes of your arguments,' he said.
He then said, when framing charges, the tribunal cannot go beyond the charge submitted by the prosecution. It is not for the tribunal to prepare the charge by themselves. 'It is absolute duty of the prosecution to prepare charge, he said.
Islam said that if the tribunal does this it will be doing the work of the prosecutor.
'Is there anywhere in the world who can show that the it is the duty of the the tribunal to frame charges?' he asked.
The chairman argued that in Bangladesh it is the court that prepares and frames the charge, but Islam said that the criminal procedural code should not be considered.
The chairman pointed to rule 38(1) which he said showed that the tribunal was responsible for framing the charge. 'The prosecution will prepare the charge and the tribunal will after consideration decide what is charge frame.' he said.
Islam responded by saying that in no international tribunal is the charge prepared by the Judges. 'I will show you the rules of other tribunal' he said.
The chairman said that Islam should not show these procedures as we will follow this tribunal's Rules of Procedure which allows the tribunal to prepare and frame charge.
Islam argued that the tribunal's Rrules of procedure do not allow the judges to prepare the charge, and referring to the other international tribunals said that once a prima facie case has been found, the prosecutor should draft the indictment.
The chairman asked Islam who will determine in our law the prima facie case? It is us – if so we will prepare the charge. He asked Islam whether after determination of prima facie case the tribunal should send it back to the prosecutor to draft the charge.
Islam argued that under rule 19 of the Bangladesh tribunal's rules of procedure, it is the chief prosecutor who needs to satisfy himself about the prima facie case first and only if he is satisfied can he proceed with formal charge. He referred to section 18(4) of the ICTY statute.
The chairman said that this international law was not applicable and that in Bangladesh law the prosecution is required to place the charge in the form of an application and the tribunal will then consider it and can prepare charge if required.
Islam again asked the tribunal why it was taking over the responsibility of the prosecutors. 'You can frame, but not prepare,' the formal charge, he said.
The chairman denied this and said that framing of charges was the tribunal's responsibility and that they will do this. He said that the 'formal charge is in the form of a petition'.
Islam then made a point about the investigation report. 'Is there any investigation report with the tribunal?' he asked. He said at the time of taking formal charge the tribunal should taken into account consideration of all documents.
Islam said, the investigation report is supposed to be given to the defence. 'It is a game of hide and seek'.
He pointed to rule 18 of the rules of procedure which states, 'Upon receipt of report of investigation of offence(s), the Chief Prosecutor or any other Prosecutor authorized by him shall prepare a formal charge in the form of a petition on the basis of the papers and documents and the evidences collected and submitted by the Investigation Officer and shall submit the same before the Tribunal.'
And then rule 19 which states 'If any Investigation Report does not disclose a prima facie case against an accused the Chief Prosecutor may initiate further investigation or stop the said investigation.'
[I think the point that the defence lawyer was trying to make was the importance of the investigation report which the defence did not have.]
Islam then argued that the prosecutors had admitted that there are some vagueness in the charge, but they want to cure them during trial. 'There is no scope to cure the gaps in trial,' he said. 'If there is vagueness, unless they are specified, then charge cannot be framed?'
He said that what the prosecution was arguing was 'against the law, it was misconceived'
Islam said that subsequent to the formal charge if any new evidence is found then the Tribunal may frame the charge again, but that if the existing charge is vague then the accused should be discharged.
He read out section 222 of the Bangladesh Criminal Procedure Code which states: 'Particulars as to time, place and person: The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.'
Islam, said 'Each time was are telling you' about the vagueness.
The chairman said, 'we will consider everything'
Islam then said that the prosecution admits that there is no inconsistency between domestic law and international law. He then said that the prosecutor appears to be supporting the argument of the defence through his submissions on Article 15(2) of ICCPR which provides that a person can be tried in accordance with the law that existing at the time of commission of crime.
Islam then said that the tribunal had inaccurately stated that the international covenants are not binding since these are signed by the ministers and not passed in parliament. He pointed to article 7 and 145(A) of the constitution to point bout that an international treaty has binding authority.
Justice Jahir then pointed to an Americna court case where he said that a US court had decided that the court was not bound by the Vienna Convention even though the USA was signatory to this convention.
Islam argued that it is not relevant what the US courts have done.
Jahir responded by saying that he was quoting the case to show that these treaties are 'not binding on this court'.
Islam then said that there was wholesale lack of mens rea [mental element of the crime i.e intention] in the formal charge and argued that as a result the tribunal cannot frame charge on this formal charge.
Islam then moved onto modes of liability and said that the prosecution had not identified in which of the counts they would like to bring in the concept of command responsibility. Islam argued that without this specification it was not possible for the accused to prepare his defence.
Islam then discussed insufficient evidence and said that the tribunal cannot 'fill up the lacuna of the prosecutor.'
The chairman said that the tribunal would not do that.
Prosecutor Zead Al-Malum stood up and said that the prosecutors also do not want the tribunal to feel up any gaps.
Islam said that the prosecutor had claimed that three writ petitions have been filed challenging the 1973 Act and the High Court Division rejected all of them. 'It is our submission that there is no scope to challenge this Act before the High Court Division or before any authority. This Tribunal is the only authority to raise any deficiency in the Act,' he said.
Islam said that if the tribunal found the law to be defective the accused must be discharged.
The prosecution has already admitted that if there is any deficiency in our law then we can use international instruments for assistance. But the prosecution did not specify how this can be done.
Islam said that the offences need to be defined for the interest of all the parties. He said that crimes against humanity was merely a list of offences. 'What is murder, extermination ... Is this set out in the law? Are the elements of the offence defined in the Act. In the ICTY this is defined in the Act, but here it is not.' He said that the 'offence of crimes against humanity and genocide still need elements to be defined, for the defence as well as for the tribunal.'
He also said that the Act did not mention the nexus between the offence of crimes against humanity and an international armed conflict.
He then moved onto the definition of Genocide. He said that there was an error in that the words ‘such as’ should actually be ‘as such’.
The chairman has said that it is not the court's duty to covert these words. 'We will go by our Act. We will take the meaning as it comes by the word ‘such as’.'
Islam complained that the act lacks definition.
Islam said that the prosecution had claimed that they have submitted the record of what happened at the safe home to the tribunal for consideration. This should not be done as they are inadmissible. Moreover they did not give us copy.
The chairman said that the tribunal had not found such a copy and that Ali must have been mistaken saying that.
Islam completed his arguments by summarising his points and he concluded by saying that they 'applied for the formal charge application to be discharged.'
Court was adjourned until 3 October for order on charge-framing.
25 sept 2011: Charge hearing continues
This hearing follows directly on from the hearing on 21 September, with Tajul Islam, the lawyer for the defence, continuing to read out from his application as to why Delwar Hossain Sayedee should not be framed for any charges and should instead be discharged.
Charge-framing Hearing continues
Multiple counts: Tajul Islam stated that the proposed indictment has three main headings entitled “First”, “Second” and “Third” and that within the “First” sub-heading, the Prosecution have listed: (1) “murder as a crime against humanity”; (2) “abduction, extermination, deportation, torture and other humane acts as crimes against humanity” and (3) “rape as a crime against humanity”.
He then said that it was unclear as to whether 'the Prosecution seeks to prosecute this as three counts, namely: (1) murder, (2) abduction, extermination, deportation, torture and other humane acts and (3) rape. Or rather whether there are seven counts of crimes against humanity, namely: (1) murder, (2) abduction, (3) extermination, (4) deportation, (5) torture and (6) other humane acts and (7) rape.'
He argued that this uncertainty was in violation of Article 15(1) of the International Covenant on Civil and Political Rights resulting in in a defective indictment.
Insufficient factual basis: He said that under section 16(1) of the 1973 Act, the charges sought by the Prosecution must contain the particulars and facts of an alleged offence as well as the crime of which the accused person is charged in order to “give the accused person notice of the matter with which he is charged”.
He argued that in relation to a number of offences there were not sufficient 'particulars' - that in order to determine whether the facts accord with the crime or the form of participation charged, further information must be provided for by the prosecution within the proposed indictment and that this is necessary as the alleged events occurred forty years ago and must therefore be verified before this tribunal.
He said that the insufficient particulars of offence include the following:
- failing to provide a schedule detailing a list of the names of the alleged victims in the following paragraphs/counts: 16(a), 19(b), 20, 22(b), 24(b), 25 and 26. 'For example, at paragraph 22(b), the Prosecution fails to include the names of the “other numerous women” classed as rape victims. This is compared to the preceding paragraph 22 (a), which identifies other rape victims as “the three sisters of the said Gourongo Saha, being Mahamaya, Anna Rani and Komla Rani”.'
- fails to provide a schedule detailing the location and identifying features of property that has alleged to have been destroyed or looted in the following paragraphs: 7(a) and (b), 8, 9, 10, 11, 12 (b), 13 (a) and 21. For example, within paragraph 12, the 'Prosecution fail to identify the “25 other houses” alleged to have been attacked and destroyed by arson, despite identifying 8 other households within the same paragraph as the households of “Chitto Ronjon Talkuder, Johor Talkuder, Horen Tagore, Moken Tagore, Anik Mondol, Bisha Bali, Shuka Bali, Shotish Bali”'
He said that the specific properties and names of victims are required under Rule 20(1) in order to verify the truth of the fact and the number of victims and properties destroyed. He said that if the prosecution are unable to provide a comprehensive schedule of victims and properties destroyed then the incident must be withdrawn from the count.
- in paragraphs 2, 4, 23, 29 and 30 of the formal charge, a failure to include the specific dates or a relatively small time period within which the fact relied upon is said to have occurred. He said, for example, at paragraph 2, the time frame provided is a day “between 2 May 1971 and 16 December 1971.' This results, he said, in a time period of nearly 8 months to identify the alleged killing of one individual.
He said that the dates to be relied upon by the prosecution are required in order to accurately identify when the crimes are alleged to have occurred and raise the necessary challenge in defence of the accused and that the lack of specified dates is contrary to Rule 20 (1) of the Rules of Procedure. If the Prosecution are unable to provide specific dates for the incidents they rely upon, then they should be prevented from including the event within the indictment,' he argued
- failure in paragraphs/counts 26 (c), 27 and 29, the prosecution fails to specify the ‘group’ intended to be targeted in the commission of the crime of genocide as provided for in section 3(2)(c) of the 1973 Act. 'For example, at paragraph 29 of the proposed indictment, the prosecution do not identify the grouping of the ten people allegedly captured from Hoglabunia Village and taken to a Pakistani Army camp in Pirojpur. This is in contrast to the subsequent paragraph 30, which details that the individuals were all of Hindu faith.'
He argued that that this information is required in order to determine the ‘genocidal intent’ allegedly held by the accused.
Co-perpetrators: He said that in paragraphs/counts 1, 2, 8 and 26 the prosecution fail to name the individuals that were commanded, assisted by or provided assistance to the accused. For example, at paragraph 2 the prosecution fails to identify the individuals that were commanded to kill Bhagirathi of Bagmara Village in Pirojpur.
He argued that 'the general allegation that Sayedee commanded or assisted the Razakar force, Pakistan Army and other auxiliary forces is vague in nature. The names of individuals with whom the accused is alleged to have been abetting and complicit with is required. Furthermore, a detailed hierarchy of any organisational group that the Accused-Petitioner is alleged to have been in connection with is necessary. ... [T]he above information is required in order to determine the precise level of participation and involvement of the accused in the alleged charges.'
Insufficient evidence: He went on to argue that the purpose of an indictment within adversarial proceedings is to establish the charges that the prosecution believes it can prove beyond a reasonable doubt based upon the evidence collected by the Investigation Agency but that at the hearing on 4 September 2011, the prosecution admitted that in relation to the alleged torture and abduction of Abdul Mannan Talkuder on the 17 or 18 May 1971, it did not have sufficient evidence to support this charge.
He argued that although the Tribunal indicated that the charge should not be removed at this stage and be considered at a later date, it would be inappropriate to continue with a charge that is deemed to be unlikely to result in conviction from the outset, as it would be an onerous burden upon the defence who must establish its defence upon each and every count. This requires extra time and resources that would be better focused in other areas, he said.
His final line in the application that Islam read out was that the Tribunal, for the reasons mentioned, should 'issue an order directing the discharge' of his client.
He then read out from the various legal authorities that he had mentioned during the application.
The chairman stated that there was no provision for submitting the proposed charge, though the prosecution had submitted this. He said that the tribunal may or may not accept this and will be framing charge on the basis of formal charge, witness statements and other prosecution documents. He asked the defence lawyer whether he wanted to submit anything on the formal charge and the prosecution documents.
Islam said that the proposed charge is a summary of the formal charge and that the submission on the proposed charge was the same as the formal charge and that he had nothing to add.
Prosecution Response to Defence Application
Below are the main points made by Haider Ali for the prosecution:
- the 1973 Act is passed by our Parliament and there is no objection against this law. Three writ petitions have been filed challenging this law, but in none of the cases was the law declared to be defective. This tribunal is not the right forum to discuss the defects in this law and the law is sufficient to try the offences.
- an individual of an auxiliary force is covered under the Act and this court has jurisdiction over offences committed by him.
- section 3(2) of the 1973 Act has defined crime against humanity and the tribunal will use this definition - but international laws can be used to define the offences with the local law being read together to include the definitions in the international instruments. The international obligations should be followed, but there is no conflict between Bangladesh's domestic law and the international standard.
- although there is no provision for proposed charge in the 1983 Act, the prosecution submitted this for the assistance of the court and it reflects the elements set out in the formal charge document.
- although details of witnesses are required in Rule 20(1) of the Rules of Procedure, they are not being given to the defence for security reason. But these have already been given to the tribunal in the CD and DVD. These detail information on prosecution witnesses will be given to the defence in separate documents later on.
- in response to a query by the tribunal concerning the need for the date of the incident to be specific, Ali admitted that in some cases the the date is not specified as the witnesses are not always victims. He argued that the incidents were 40 years ago and the victims and witnesses did not mention specific date and time of the alleged incidents to the investigator 'and the investigator very honestly did not also mention the date and time. We could have inserted them but due to our honesty we did not.'
The chairman again asked the Ali whether it was the accused’s right to know the specified date of the alleged incident. Ali said that if there was any vagueness then the defence should get the benefit of it during trial. 'The defence should not have raised this point now as it is alerting us. It appears that we are hearing an appeal,' he argued.
The chairman then said that the defence was not arguing that the alleged incidents did not take place. but that the accused was not there.
Justice Fazle Kabir then said that he thought the proposed charge was 'a vague document. The places of occurrences are vague as you did not mention the relevant police station and other identifying features,' he said, On this point, he argued the defence lawyer was correct. Merely saying the name of house or village is not sufficient.'
Ali said that it was not correct that the proposed charge was so vague and that if he thought so he should discharge the accused.
Kabir then asked Ali to show the specifications of places of occurrences in the proposed charge. He said that Islam had mentioned vagueness in count 2 of the proposed charge and suggested that he should read out from there.
The chairman added that in count one, the place is not specific. Ali responded by saying that Parerhat Port is a very well known place and a big port and one need not give the name of the police station
Kabir again said that in count 2 the time of occurrence was vague. Justice Jahir said that in count 6 the name of the offences were not specified. 'You merely listed the offences but did not specify the exact offence committed by the accused' he said.
The chairman then asked whether Ali thought that if we frame charges on the basis of the proposed charge it would be correct?
Justice Jahir asked the prosecution why they submitted a proposed charge when there was no such requirement in the 1973 Act. Ali responded by saying that it was merely a summary of the formal charge for the assistance of the court.
The tribunal was adjourned until after lunch.
After lunch, Ali stated that the places of occurrences, dates, times and manner of committing the crimes are specified in the formal charge, witness statements and other documents, so that there is no vagueness in the allegations.
He said that a series of incidents may contain several offences and that the proposed charge is drafted in that way, but that if the court thinks that it is not specific then it can clarify this
He said that the prosecution was not required to identify the counts and that it could have just mentioned the facts under one heading of crime sgainst humanity.
He said that they had identified witnesses for each count and that when the witnesses come before this tribunal they will clear the vagueness in the proposed charge.
The tribunal then asked Ali how murders can be crimes against humanity as well as War Crimes or Genocide? The prosecution was asked how they should be differentiated?
Ali responded by saying that the formal charge was clear. Genocide is to destroy a community, but for a single incident where the victim is picked up separately it is a crimes against humanity.
Ali was asked whether he meant that genocide was an aggravated form of murder. Ali then read out from section 3(2) of the Act.
Ali then read out section 4(1) and 3(2)(g) of the Act and argued that attempt and abetment were principal offences.
He then said that the accused was leader of the Rajakar and he could communicate with the Pakistani Army as he was fluent in Urdu and Arabic.
The chairman then suggested that the charge did not contain an allegation that the accused was a leader of Rajakar. 'It is only alleged that the accused could communicate with the Pakistani Armies. Show me how he was leader? This is important.'
Ali referred to the last two paragraphs of the witness statement of Ruhul Amin Nobin to prove that the accused was leader of Rajakar and Peace Committee.
The tribunal chairman then asked whether he wanted to say that Sayedee was either the commander or officer of the group?
Ali said that the prosecution materials will show that Sayedee was commander and leader.
Ali said that the accused was no ordinary man at that time. Before 1970 he was a student leader. He was canvassing in favour of a political party in 1970 election. 'We will show by the witnesses during trial that he was a leader as well as commander,' he said.
The chairman asked whether being in control of 'five funds' is sufficient to show that he was a commander? Ali responded by saying that it was one of the ways to show that he was a leader.
The chairman then asked whether forming a Rajakar camp was itself an offence. Ali responded by saying that the camp was related to every offence committed by the accused.
The chairman asked whether if the accused formed the Rajakar camp but the offences were committed by somebody else whether the accused should be liable for those offences.
Ali said that he was not saying that, but that most of the witnesses said that the Rajakar Camp is related to many of the counts and that this formation of Rajakar camp is sufficient to prove that he was a leader and all crimes committed as per his order.
Justice Jahir asked whether any of the incidents would be covered under command responsibility? Ali said that he would show this, and read out section4(2)
Jahir said that for section 4(2) to apply the accused must be a commander or superior officer. Prosecution must prove this. Mere planning or ordering is not sufficient to prove command responsibility and liability under S 4(2).
Ali responded by saying that they would show this at trial.
In relation to the claim about 'insufficient evidence' Ali said that there is some evidence against the accused, but that 'without trial it cannot be said whether it is sufficient or insufficient. The Charge cannot be stopped for this.'
He argued that if there was any contradiction between Bangladesh and international law then the domestic law should prevail. 'I could not find a single conflict between the international law and domestic law.'
He said that there can be three types of witnesses – (i) victim, (ii) eye witness and (iii) circumstantial witness. 'If the prosecution witnesses are week and insufficient then this may be revealed by cross examination. There is no possibility for the defence to be prejudiced,' he said.
Ali then asked that the tribunal be adjourned till the next day. Islam argued that the next day the defence lawyers were busy on a defamation case relating to the Sayedee matter. The tribunal judge said that they could not adjourn the case for another day as there would be a lot of adverse media comment.
In the end the tribunal agreed that the hearing should resume on the 27th but that this would be the final day.
Charge-framing Hearing continues
Multiple counts: Tajul Islam stated that the proposed indictment has three main headings entitled “First”, “Second” and “Third” and that within the “First” sub-heading, the Prosecution have listed: (1) “murder as a crime against humanity”; (2) “abduction, extermination, deportation, torture and other humane acts as crimes against humanity” and (3) “rape as a crime against humanity”.
He then said that it was unclear as to whether 'the Prosecution seeks to prosecute this as three counts, namely: (1) murder, (2) abduction, extermination, deportation, torture and other humane acts and (3) rape. Or rather whether there are seven counts of crimes against humanity, namely: (1) murder, (2) abduction, (3) extermination, (4) deportation, (5) torture and (6) other humane acts and (7) rape.'
He argued that this uncertainty was in violation of Article 15(1) of the International Covenant on Civil and Political Rights resulting in in a defective indictment.
Insufficient factual basis: He said that under section 16(1) of the 1973 Act, the charges sought by the Prosecution must contain the particulars and facts of an alleged offence as well as the crime of which the accused person is charged in order to “give the accused person notice of the matter with which he is charged”.
He argued that in relation to a number of offences there were not sufficient 'particulars' - that in order to determine whether the facts accord with the crime or the form of participation charged, further information must be provided for by the prosecution within the proposed indictment and that this is necessary as the alleged events occurred forty years ago and must therefore be verified before this tribunal.
He said that the insufficient particulars of offence include the following:
- failing to provide a schedule detailing a list of the names of the alleged victims in the following paragraphs/counts: 16(a), 19(b), 20, 22(b), 24(b), 25 and 26. 'For example, at paragraph 22(b), the Prosecution fails to include the names of the “other numerous women” classed as rape victims. This is compared to the preceding paragraph 22 (a), which identifies other rape victims as “the three sisters of the said Gourongo Saha, being Mahamaya, Anna Rani and Komla Rani”.'
- fails to provide a schedule detailing the location and identifying features of property that has alleged to have been destroyed or looted in the following paragraphs: 7(a) and (b), 8, 9, 10, 11, 12 (b), 13 (a) and 21. For example, within paragraph 12, the 'Prosecution fail to identify the “25 other houses” alleged to have been attacked and destroyed by arson, despite identifying 8 other households within the same paragraph as the households of “Chitto Ronjon Talkuder, Johor Talkuder, Horen Tagore, Moken Tagore, Anik Mondol, Bisha Bali, Shuka Bali, Shotish Bali”'
He said that the specific properties and names of victims are required under Rule 20(1) in order to verify the truth of the fact and the number of victims and properties destroyed. He said that if the prosecution are unable to provide a comprehensive schedule of victims and properties destroyed then the incident must be withdrawn from the count.
- in paragraphs 2, 4, 23, 29 and 30 of the formal charge, a failure to include the specific dates or a relatively small time period within which the fact relied upon is said to have occurred. He said, for example, at paragraph 2, the time frame provided is a day “between 2 May 1971 and 16 December 1971.' This results, he said, in a time period of nearly 8 months to identify the alleged killing of one individual.
He said that the dates to be relied upon by the prosecution are required in order to accurately identify when the crimes are alleged to have occurred and raise the necessary challenge in defence of the accused and that the lack of specified dates is contrary to Rule 20 (1) of the Rules of Procedure. If the Prosecution are unable to provide specific dates for the incidents they rely upon, then they should be prevented from including the event within the indictment,' he argued
- failure in paragraphs/counts 26 (c), 27 and 29, the prosecution fails to specify the ‘group’ intended to be targeted in the commission of the crime of genocide as provided for in section 3(2)(c) of the 1973 Act. 'For example, at paragraph 29 of the proposed indictment, the prosecution do not identify the grouping of the ten people allegedly captured from Hoglabunia Village and taken to a Pakistani Army camp in Pirojpur. This is in contrast to the subsequent paragraph 30, which details that the individuals were all of Hindu faith.'
He argued that that this information is required in order to determine the ‘genocidal intent’ allegedly held by the accused.
Co-perpetrators: He said that in paragraphs/counts 1, 2, 8 and 26 the prosecution fail to name the individuals that were commanded, assisted by or provided assistance to the accused. For example, at paragraph 2 the prosecution fails to identify the individuals that were commanded to kill Bhagirathi of Bagmara Village in Pirojpur.
He argued that 'the general allegation that Sayedee commanded or assisted the Razakar force, Pakistan Army and other auxiliary forces is vague in nature. The names of individuals with whom the accused is alleged to have been abetting and complicit with is required. Furthermore, a detailed hierarchy of any organisational group that the Accused-Petitioner is alleged to have been in connection with is necessary. ... [T]he above information is required in order to determine the precise level of participation and involvement of the accused in the alleged charges.'
Insufficient evidence: He went on to argue that the purpose of an indictment within adversarial proceedings is to establish the charges that the prosecution believes it can prove beyond a reasonable doubt based upon the evidence collected by the Investigation Agency but that at the hearing on 4 September 2011, the prosecution admitted that in relation to the alleged torture and abduction of Abdul Mannan Talkuder on the 17 or 18 May 1971, it did not have sufficient evidence to support this charge.
He argued that although the Tribunal indicated that the charge should not be removed at this stage and be considered at a later date, it would be inappropriate to continue with a charge that is deemed to be unlikely to result in conviction from the outset, as it would be an onerous burden upon the defence who must establish its defence upon each and every count. This requires extra time and resources that would be better focused in other areas, he said.
His final line in the application that Islam read out was that the Tribunal, for the reasons mentioned, should 'issue an order directing the discharge' of his client.
He then read out from the various legal authorities that he had mentioned during the application.
The chairman stated that there was no provision for submitting the proposed charge, though the prosecution had submitted this. He said that the tribunal may or may not accept this and will be framing charge on the basis of formal charge, witness statements and other prosecution documents. He asked the defence lawyer whether he wanted to submit anything on the formal charge and the prosecution documents.
Islam said that the proposed charge is a summary of the formal charge and that the submission on the proposed charge was the same as the formal charge and that he had nothing to add.
Prosecution Response to Defence Application
Below are the main points made by Haider Ali for the prosecution:
- the 1973 Act is passed by our Parliament and there is no objection against this law. Three writ petitions have been filed challenging this law, but in none of the cases was the law declared to be defective. This tribunal is not the right forum to discuss the defects in this law and the law is sufficient to try the offences.
- an individual of an auxiliary force is covered under the Act and this court has jurisdiction over offences committed by him.
- section 3(2) of the 1973 Act has defined crime against humanity and the tribunal will use this definition - but international laws can be used to define the offences with the local law being read together to include the definitions in the international instruments. The international obligations should be followed, but there is no conflict between Bangladesh's domestic law and the international standard.
- although there is no provision for proposed charge in the 1983 Act, the prosecution submitted this for the assistance of the court and it reflects the elements set out in the formal charge document.
- although details of witnesses are required in Rule 20(1) of the Rules of Procedure, they are not being given to the defence for security reason. But these have already been given to the tribunal in the CD and DVD. These detail information on prosecution witnesses will be given to the defence in separate documents later on.
- in response to a query by the tribunal concerning the need for the date of the incident to be specific, Ali admitted that in some cases the the date is not specified as the witnesses are not always victims. He argued that the incidents were 40 years ago and the victims and witnesses did not mention specific date and time of the alleged incidents to the investigator 'and the investigator very honestly did not also mention the date and time. We could have inserted them but due to our honesty we did not.'
The chairman again asked the Ali whether it was the accused’s right to know the specified date of the alleged incident. Ali said that if there was any vagueness then the defence should get the benefit of it during trial. 'The defence should not have raised this point now as it is alerting us. It appears that we are hearing an appeal,' he argued.
The chairman then said that the defence was not arguing that the alleged incidents did not take place. but that the accused was not there.
Justice Fazle Kabir then said that he thought the proposed charge was 'a vague document. The places of occurrences are vague as you did not mention the relevant police station and other identifying features,' he said, On this point, he argued the defence lawyer was correct. Merely saying the name of house or village is not sufficient.'
Ali said that it was not correct that the proposed charge was so vague and that if he thought so he should discharge the accused.
Kabir then asked Ali to show the specifications of places of occurrences in the proposed charge. He said that Islam had mentioned vagueness in count 2 of the proposed charge and suggested that he should read out from there.
The chairman added that in count one, the place is not specific. Ali responded by saying that Parerhat Port is a very well known place and a big port and one need not give the name of the police station
Kabir again said that in count 2 the time of occurrence was vague. Justice Jahir said that in count 6 the name of the offences were not specified. 'You merely listed the offences but did not specify the exact offence committed by the accused' he said.
The chairman then asked whether Ali thought that if we frame charges on the basis of the proposed charge it would be correct?
Justice Jahir asked the prosecution why they submitted a proposed charge when there was no such requirement in the 1973 Act. Ali responded by saying that it was merely a summary of the formal charge for the assistance of the court.
The tribunal was adjourned until after lunch.
After lunch, Ali stated that the places of occurrences, dates, times and manner of committing the crimes are specified in the formal charge, witness statements and other documents, so that there is no vagueness in the allegations.
He said that a series of incidents may contain several offences and that the proposed charge is drafted in that way, but that if the court thinks that it is not specific then it can clarify this
He said that the prosecution was not required to identify the counts and that it could have just mentioned the facts under one heading of crime sgainst humanity.
He said that they had identified witnesses for each count and that when the witnesses come before this tribunal they will clear the vagueness in the proposed charge.
The tribunal then asked Ali how murders can be crimes against humanity as well as War Crimes or Genocide? The prosecution was asked how they should be differentiated?
Ali responded by saying that the formal charge was clear. Genocide is to destroy a community, but for a single incident where the victim is picked up separately it is a crimes against humanity.
Ali was asked whether he meant that genocide was an aggravated form of murder. Ali then read out from section 3(2) of the Act.
Ali then read out section 4(1) and 3(2)(g) of the Act and argued that attempt and abetment were principal offences.
He then said that the accused was leader of the Rajakar and he could communicate with the Pakistani Army as he was fluent in Urdu and Arabic.
The chairman then suggested that the charge did not contain an allegation that the accused was a leader of Rajakar. 'It is only alleged that the accused could communicate with the Pakistani Armies. Show me how he was leader? This is important.'
Ali referred to the last two paragraphs of the witness statement of Ruhul Amin Nobin to prove that the accused was leader of Rajakar and Peace Committee.
The tribunal chairman then asked whether he wanted to say that Sayedee was either the commander or officer of the group?
Ali said that the prosecution materials will show that Sayedee was commander and leader.
Ali said that the accused was no ordinary man at that time. Before 1970 he was a student leader. He was canvassing in favour of a political party in 1970 election. 'We will show by the witnesses during trial that he was a leader as well as commander,' he said.
The chairman asked whether being in control of 'five funds' is sufficient to show that he was a commander? Ali responded by saying that it was one of the ways to show that he was a leader.
The chairman then asked whether forming a Rajakar camp was itself an offence. Ali responded by saying that the camp was related to every offence committed by the accused.
The chairman asked whether if the accused formed the Rajakar camp but the offences were committed by somebody else whether the accused should be liable for those offences.
Ali said that he was not saying that, but that most of the witnesses said that the Rajakar Camp is related to many of the counts and that this formation of Rajakar camp is sufficient to prove that he was a leader and all crimes committed as per his order.
Justice Jahir asked whether any of the incidents would be covered under command responsibility? Ali said that he would show this, and read out section4(2)
Jahir said that for section 4(2) to apply the accused must be a commander or superior officer. Prosecution must prove this. Mere planning or ordering is not sufficient to prove command responsibility and liability under S 4(2).
Ali responded by saying that they would show this at trial.
In relation to the claim about 'insufficient evidence' Ali said that there is some evidence against the accused, but that 'without trial it cannot be said whether it is sufficient or insufficient. The Charge cannot be stopped for this.'
He argued that if there was any contradiction between Bangladesh and international law then the domestic law should prevail. 'I could not find a single conflict between the international law and domestic law.'
He said that there can be three types of witnesses – (i) victim, (ii) eye witness and (iii) circumstantial witness. 'If the prosecution witnesses are week and insufficient then this may be revealed by cross examination. There is no possibility for the defence to be prejudiced,' he said.
Ali then asked that the tribunal be adjourned till the next day. Islam argued that the next day the defence lawyers were busy on a defamation case relating to the Sayedee matter. The tribunal judge said that they could not adjourn the case for another day as there would be a lot of adverse media comment.
In the end the tribunal agreed that the hearing should resume on the 27th but that this would be the final day.
Thursday, October 13, 2011
21 Sept 2011: Charge framing challenged
At this hearing, the tribunal heard a defence application seeking the recall of the order of cognisance made by the tribunal on 14 July 2011, and also the defence application started arguing against the framing of charges (adjourned from 13 September).
Application for recall of the order of Cognizance
This was the second application made by the defence seeking application for the order of cognisance. The first one was on 18 August, and was rejected.
The application was argued by Tajul Islam. He explained that this application was praying for the re-call of the order dated 14 July 2011 passed by the tribunal which took cognizance for offencs alleged against Sayedee under the International Crimes (tribunals) Act, 1973.
He said, that although, the prosecution submitted the formal charge against the accused on 11 July 2011 it failed to submit statements made by 38 witnesses covering 61 pages. The tribunal therefore did not have all the documents and evidence before it at the time cognizance was taken by it on 14 July 2011. He said that this has seriously prejudiced the conduct of a fair trial.
He said that the relevant part of the order dated 14 July 2011 was as follows:
He said that as cognisance was given without the tribunal having seen these statements, the trial process will be highly prejudiced since the tribunal has taken cognizance on partial evidence.
He stated that in 7 of the counts, (namely Count nos 2, 10, 11, 14, 18, 19 and 24 of the Proposed Charge/Indictment), the prosecution has relied solely on the witness statements of witnesses contained in Volume 2. Moreover, it has also relied on these statements in relation to the other counts. As such he said the tribunal has no opportunity to consider important evidence at the time of taking cognizance and therefore that ‘the order taking cognizance was defective.’
He went onto say that in order to ensure a fair trial, the witness statements of all the witnesses are required to be considered by the tribunal at the time of taking cognizance and that therefore the order should be recalled
The tribunal chairman said, 'Look, taking cognizance is a judicial notice. If the tribunal thinks the formal charge is enough to take cognizance they can take their decision based on that. There is no question of considering any documents that were not provided. The provided documents were satisfactory to take cognizance of the offence.'
Tajul responded by saying, 'But, my lord, rule 29(1) doesn’t say anything like this. It provides that you have to take into account the documents, evidences and other papers.'
The tribunal chairman said, 'Yes, we know that. We made the rules.'
Islam responded by saying, 'Yes, of course, you made the rules and you have to abide by them. Rule 29(1) says, “... upon examination of the formal charge, the Investigation Report, the papers, documents and the evidence... ...” So everything has to be taken into account if you have to take cognizance of the offence, he said.
The chairman said, 'Mr Tajul, we have taken cognizance of the offence not based on the charge, not based on counts. We have taken cognizance of the offences according to section 3(2) of ICT act. Whatever was provided, we were satisfied and was of the view that cognizance can be taken.'
The defence lawyer said, 'My lord, the offences that you were taken into cognizance - those witness statements were not even provided. So, how can you take cognizance? Thirty eight witness statements were not even there!
He went on, 'My lord, I want to humbly submit that there was no scope of taking cognizance. As those statements were missing there can be no cognizance taken based on that point. We want to say that as cognizance of offence was taken on the offences that were not even there, there also can be charge framed on those offences.'
Haider Ali, the prosecutor then rose and said that cognizance is a ‘mental’ matter.
He also argued that, there is no scope to recall the order of taking cognizance under any law, and that though the witness bundle 2 was not submitted in paper, they has been submitted in the CDs. 'So, the cognizance was taken in the right way. There’s nothing to be misguided about,' he said.
Islam responded to this by saying that this tribunal is not guided by the criminal procedure code and that, the tribunal must apply rule 21(1) while taking cognizance. He also said that the tribunal has inherent power to recall the cognizance order for the interest of justice. He said, that the law says that each and everything has to taken into account if cognizance has to be taken. If the witness statements were missing while you were taking cognizance, the charge framed based on this can not be valid. 'The prosecution can’t just file a list of offences and without evidence you can not take cognizance. So any order passed on this point has to be recalled.'
Justice Justice ATM Fazle Kabir then passed the following order immediately:
Application against charge-framing, to discharge the accused
Tajul Islam then rose and read out rule 20 of the rules of procedure. This states that: 'At the time of submitting a formal charge in the form of a petition, it must contain the name and address of the accused person, witness, and the date, time and place of the occurrence.'
He said that the prosecution has submitted two volumes of witness statements but this information is not available on all the witness statements. He referred to the first page of witness one (I think) and said that the lack of information made in 'in violation of rule 20(1). It is hide and seek.'
The tribunal said, 'this is part of your arguments. We will consider the submission in the order. Your arguments will be disposed of when all arguments are disposed of.'
Islam then said that at that point his submission would then be 'infructuous'
He went on to say that 'It is incomplete. The documents are incomplete.
The tribunal chair then made a big point of writing the arguments down saying outloud at the same time, 'No address has been given in witness statements ...'
Tajul Islam then started to read out his written application. He said that on 4 September 2011, the prosecution submitted its proposed indictment along with a list of 68 witnesses in support of the prosecution’s case against the accused. He then set out reasons why the tribunal should issue an order directing for his discharge.
Requirements of framing of charges
Islam said that Article 14(3)(a) of the International Covenant for Civil and Political Rights (ICCPR) provides for the right to be informed of the charge: “To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him”.
Islam emphasised the words ‘promptly and in detail’, and said that this should include ‘time and place’
He said that in its General Comment No.32 the Human Rights Committee under the ICCPR stated that: “The specific requirements of subparagraph 3 (a) may be met by stating the charge either orally - if later confirmed in writing - or in writing, provided that the information indicates both the law and the alleged general facts on which the charge is based”. Islam emphasised, ‘both law and facts’
He added that the Pre-Trial Chamber at the International Criminal Court has held that the document containing the charges must include the full name of the person and any other relevant identifying information; a statement of the facts; including the time and place of the alleged crimes, which provides a sufficient legal and factual basis to bring the person or persons to trial. Including relevant facts for the exercise of jurisdiction by the Court; a legal characterization of the facts to accord both with the crimes and the precise form of participation He refered to the case of Prosecutor v. Jean-Pierre Bemba Gombo, decision on 15 June 2009, para. 208.)
At around this time Islam wanted to submit the supporting materials. The tribunal chairman said that he would take a look at those later and consider those supporting materials after Islam had placed the application.
Islam then went on that the international requirements also conforms to the standard practice in domestic criminal proceedings as provided for in section 221, 222 and 223 of the Code of Criminal Procedure. In particular section 221(5) provides that when a charge is made, it is the 'equivalent to a statement that every legal condition required by law to constitute the offence charge was fulfilled in the particular case' and section 222 of the Code provides that particulars as to time, place and person must be stated in the charge.
Islam said that this is also the procedure provided for in section 16 of the International Crimes (tribunal) Act 1973 as amended 2009 which stated that: “Every charge against an accused person shall state- a) the name and particulars of the accused person; b) the crime of which the accused person is charged; c) such particulars of the alleged crime as are reasonably sufficient to give the accused person notice of the matter with which he is charged .”
He said that this is supported by Rule 20 (1) of the Rules of Procedure which provides: “At the time of submitting a formal charge in the form of a petition, it must contain the name and address of the accused person, witness, and the date, time and place of the occurrence”.
Islam said at the time of charge framing, the alleged ‘crimes are not defined, the elements of the crime are not defined. the circumstances are vague’. He said the ‘particulars are not there. The time of the occurrence is not there. The names of the victims are not there.’ He said that if these things are absent, the case cannot be charged.
He went onto say that therefore under section 16 of the 1973 Act, the purpose of the framing of the charges is to characterize the alleged facts in accordance with the legal elements of a crime so as to provide the accused with the opportunity to raise his defence.
Islam said that there is ‘no contradiction’ between local and international law. He finished this section by saying that ‘it is respectfully submitted that the charges cannot be framed as they provide and rely on both an insufficient legal basis and contain insufficient factual information.’
Challenges to the Indictment: Insufficient legal basis: Islam then said that the principle of nullum crimen sine lege [no crime without law] is enshrined in Article 15 (1) ICCPR: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby”.
Islam said that the right provided for in Article 15(1) ICCPR also provides for the right to legal certainty whereby all crimes are to be adequately detailed in law. It prohibits the prosecution and punishment under vague laws that do not clearly proscribe the conduct for which one has been punished. He refered to concluding observations of the Human Rights Committee Portugal in 1999 where the Human Rights Committee stated its concern over the “creation of vague and insufficiently defined (or ‘abstract’) offence”.
The lawyer said that on 6 September 2000 Bangladesh acceded to the ICCPR and in doing so became bound by the rights and obligations established by the ICCPR and its executive monitoring body, the HRC. He argued that under Article 2(1) of the ICCPR: “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,” and that according to the HRC, the ICCPR requires its “effective precedence over any inconsistent legislative act”.
He said that this was consistent with the overarching pacta sunt servanda principle of the Vienna Convention on the Law of Treaties , namely that treaty based obligations must be complied with in good faith. Article 26 of the Vienna convention provides that: “Every treaty in force is binding upon the parties to it and must be performed in good faith”. Islam then quoted from article 25 of the constitution which states that the state will ‘respect international law’.
The tribunal chairman then said ‘does respect mean binding? It is only persuasive’ Justice Zahir then made a point that this principle should also apply to the United States but they do not abide by international law.
Islam went on to say that article 27 of the Vienna convention provides: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” He added that it is widely known that the provisions of Vienna treaty reflect customary international law and are applicable to all states.
He pointed out that in a letter to the Permanent Missions of all Member States to the United Nations dated 12 April 2006, the Government of Bangladesh voluntary pledged to honour “Bangladesh’s deep commitment to the promotion and protection of human rights of all its citizens” and highlighted “Bangladesh’s adherence to all major human rights instruments”.
He stated that the principle of legal certainty is a non-derogable right and fundamental part of the rule of law as evidenced by the introduction of the ICC “Elements of Crimes” which complements the ICC Rome Statute. At the Rome Conference, it was recognised that there was “a need to define crimes with the clarity, precision and specificity that many jurisdictions require for criminal law” and that “it was of the upmost importance to define the constituent elements of those crimes in a precise manner, in view of the cardinal importance, inter alia, of the principle of nullum crimen sine lege”
He argued that the ICC “Elements of Crimes” illustrates the current required practice for courts and tribunals concerned with international crimes to detail the composite elements of the crimes. That although the events in question occurred in 1971, proceedings before this tribunal are taking place in 2011 and therefore should adhere to this current practice.
On questioning by the tribunal chairman, Islam said that there was ‘no contradiction’ between saying that the appropriate procedure should be the current procedure, but the offences that apply should be those that existed in 1971. There is ‘no inconsistency’ he said. -
The lawyer argued that the constituent elements of a crime are essentially the required ingredients that need to be met with by the alleged facts in order to establish that a crime has been committed and that without such elements, the prosecution are unable to prove beyond a reasonable doubt that a crime has been committed nor can the defence challenge the case made against it.
He said that the difficulty faced by the lack of definition of crimes listed under section 3 (2) of the 1973 Act is evident within the proposed indictment. He then went through the different offences:
Crimes against Humanity: He said that the prosecution had submitted that the crimes within the jurisdiction of this tribunal were internationally recognised and that no conflict remained between 1973 Act and international laws.
Furthermore, it noted that the definitions within section 3(2) of the 1973 Act were all present in the Bangladesh Penal Code.
He said that within its proposed indictment the prosecution does attempt to provide some legal elements within the charges. This is illustrated by the inclusion of the phrase “widespread and systematic attack” in paragraph 6 of the prosecution’s petition for formal charge disclosed to the defence on 27 July 2011.
He said that during the hearing on 4 September 2011, Justice Jahir did enquire as to whether an attack must be widespread or systematic in order to constitute a crime against humanity and that the tribunal was of the opinion that although the widespread or systematic element was a component of crimes against humanity within the Rome Statute, it was not an element within the Statute for the International Criminal tribunal for the former Yugoslavia.
He said that the prosecution submitted that this point was for the discretion of this tribunal, but that the defence submitted that currently the Bangladesh Penal Code cannot be used to provide definition of crimes within section 3 (2) of the Act as section 19 (1) of the Act expressly states that the tribunal is not bound by any technical rules of evidence thus removing the use of the Criminal Evidence Act and the Criminal Procedure Act. The tribunal is therefore not entitled under the provisions of the Act to consider elements contained within the domestic criminal procedure rules.
He went onto say that the area of international criminal law is a complex field accompanied by a wealth of jurisprudence. For example, although the statute for the ICTY does not provide for a widespread and systematic element within its definition of crimes against humanity in Article 5 the jurisprudence of the court differs and held that the ICTY Appeals Chamber in Prosecutor v. Dusko Tadic held that:
He said that the complexity of the definitions of crimes is furthered by the fact that this tribunal has jurisdiction over events that occurred in 1971. That Article 15 (2) ICCPR provides for the only exception to the nullum crimen sine lege principle under Article 15 (1) ICCPR: “Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations)”.
He said that as a result the applicable law in these proceedings is customary international law as it stood in 1971 at the time the alleged events in question occurred.
He then said, that applying the Charter of the International Military tribunal, London (“Nuremberg Charter”), on which the 1973 Act was originally based, under customary international law in 1945 a number of crimes listed in section 3 (2) of the Act were only applicable in non-international armed conflicts, namely crimes against humanity, crimes against peace, war crimes and violations of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949.
He said that this was illustrated with the definition of crimes against humanity. Under Article 6(c) of the Nuremberg Charter, crimes against humanity in 1945 was defined as: “Namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political or racial grounds in execution of or in connection with any crime within the jurisdiction of the tribunal, whether or not in violation of the domestic law of the country where perpetrated. Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any person in execution of such plan”.
He said that the term “in execution of or in connection with any crime within the jurisdiction of the tribunal” indicates that a nexus of an international armed conflict is required as the other two crimes within the jurisdiction of both International Military tribunal’s were war crimes and crimes against peace, both of which were de facto linked to international armed conflicts as discussed below.
He then went onto say that the definition of crimes against humanity under section 3 (2) (a) of the Act is largely based on the definitions under Article 6 (c) Nuremberg Charter with the exception that it excludes the words: “in execution of or in connection with any crime within the jurisdiction of the tribunal” thus removing the required nexus of an international armed conflict. He added that the required nexus between crimes against humanity and international armed conflicts remained customary international law even up until 1993 with the creation of the ICTY.
He then said that as previously held by the tribunal, the conflict in Bangladesh in 1971 is not classified as an international armed conflict between two sovereign states and herefore the acts alleged to have occurred in 1971 cannot be classed as crimes against humanity. 'To do so would amount to prosecuting an individual for an act that was not criminal according to customary international law in 1971. This would be in breach of the principle of legality under Article 15 (1) ICCPR.'
He then however went onto argue that the complexity of this field of law is further evidenced by the approach taken by the Extraordinary Chamber of the Courts of Cambodia which, similarly to the ICT, is a court in operation today and exercising jurisdiction over crimes committed between 1975 and 1979. The ECCC Trial Chamber, he said, has determined that there was no nexus requirement of an international armed conflict in the definition of crimes against humanity under customary international law in 1975:
He then went onto say that whilst removing the nexus requirement in the definition of crimes against humanity, the ECCC did find that the following constituent elements did exist within the definition of crimes against humanity under general customary law in the 1970’s:
He said that for these reasons, 'it is respectfully submitted that this tribunal should expressly articulate its position in this area in order to provide specificity and precision to the crimes listed under section 3 (2) of the 1973 Act. Both the parties and this tribunal must know the framework within which any conviction or acquittal will be based upon. It is respectfully submitted that clear definitions and elements of crimes would establish a fair trial as well as prevent future instances of confusion as evidenced in the hearing of 4 September 2011. It is requested that this tribunal should provide detailed definitions of the crimes that are applicable in proceedings before it, taking into account both the removal of evidentiary rule under section 19 (1) of the Act and the retroactivity principles pursuant to Articles 15 (1) and (2) of ICCPR.'
Requisite knowledge: He said that an important constituent element of a crime is the requisite knowledge that must be proved by the prosecution in order to find an accused guilty of an offence and that the prosecution fails to indicate any level of intention on behalf of the accused within the proposed indictment or its submissions made on 4 September 2011. This in reference to the offences of crimes against humanity, genocide and the general allegation of abetment and complicity put forward by the prosecution, though he said that admittedly, the reason for this may be the fact that under the respective provisions of section 3(2)(a),(g) and (h) of the 1973 Act there are no constituent elements detailing the requisite knowledge.
He said that even where the offence under section 3(2) of the Act provides for the requisite knowledge of a crime, the prosecution has failed to include this in either its proposed indictment or its submission. For example, under section 3 (2) (c) of the Act, genocidal acts can only be proven if they have been “committed with an intent to destroy in whole or in part, a national, ethnic, racial, religious or political group”. That this is not specified by the prosecution under paragraphs 26 to 30 of the proposed indictment.
He said that ‘intention is not mentioned. It is completely absent’
He then read out the paragraphs from the indictment:
He said that at the hearing on 4 September 2011, Justice Jahir enquired as to why killings could be listed as crimes against humanity and then also as genocide. It is respectfully submitted that this inquisition arose from the omitted requisite knowledge components within each charge and the general lack of elements of each crime as submitted above.
One of the judges then said, ‘No elements of the crimes are in the act. That is why there is a problem.’
At around this point Sayedee then was allowed to go outside to the toilet. Suddenly the prosecutor, Zead-al-Malum got up and accused Sayedee of making a mobile phone call. Tajul checked with the lawyer who accompanied (Sayedee and the police) who denied it. There was then a big commotion about alleged remarks made by the prosecutor against Islam. The tribunal pacified the situation by saying that there was a misunderstanding and that he would subsequently interview the police and see what happened.
Modes of Liability: Islam said that under paragraph 1 of the proposed indictment, the accused is accused of establishing Razakar Force camps at Parerhaat Rajlakkhi Girls School and the premises of Fakir Das located at Parerhaat Port. He then read this out:
He then reads out section 16(1) of the 1973 Act which states:
He said that furthermore, the necessary elements of what constitutes abetment or complicity are not defined under section 3(2)(g) and (h) of the 1973 Act and that without such elements it is difficult to determine the difference in the two types of participation. 'For example, using the standard definitions found in the Oxford Dictionary, abetment (encouraging or assisting someone in his wrongdoing) is naturally a form of complicity (the fact or condition of being involved with others in an unlawful activity). The two modes of liability are not distinct from one another as abetment is seen as the “weakest form of complicity”. Without knowing the constituent elements of ‘abetment’ and ‘complicity’ there is no standard criteria against which the facts must be judged within.'
He said that throughout the indictment the prosecution alleges that the accused has “committed” a number of offences (Paragraphs 1, 5, 6, 8, 9, 10, 11, 12, 13, 19, 20, 21, 25, 30). 'However, the prosecution fails to specify whether the accused physically committed the acts himself or whether it was committed through his alleged participation and involvement with “Parerhaat Razakar Force”. If it is the latter, the prosecution have failed to develop the hierarchy, organisation and policy of this group and omitted any named individual members,' he said.
He argued for this reason the prosecution have failed to establish the level of involvement of the accused and in which manner he participated, assisted and planned the alleged offences.
Incorrect Classification: He pointed out that at the hearing on 4 September 2011, Justice Jahir enquired as to how the looting of two bronze plates of Hindu and Suren amounted to a crime against humanity, but that the prosecution submitted in reply that the amount of property looted was not a consideration to be taken into account and that this activity amounted to extermination and torture as a crimes against humanity.
A discussion then took place between tribunal and Islam about what amounted to torture, with Justice Jahir saying that ‘this could result in pain, it could amount to torture.’ Jahir also enquired why his name was referred to in several places of the discharge application and that he would have to stop making comments or saying anything if he was further referred in any future application. He said that he wanted to discus different aspects of the law as it was new.
Islam then continued by saying that the Cambodian Trial Chamber has determined that under customary international law in 1971, extermination was defined in the following way:
He argued that the same trial Chamber also determined that under customary international law in the 1970’s torture was defined in the following way:
He then submitted that the crime of looting fails to meet the thresholds defined under the definitions of extermination or torture pursuant to customary international law in the 1970’s.
He then said that under paragraph 25 of the proposed indictment the prosecution alleges that the accused forcefully converted a number of individuals of the Hindu faith to Islam. That this is incorrectly classified as rape as a crime against humanity.
Chairman interrupted and said that this might be a printing mistake and would be corrected at the time of framing charge.
Islam argued that the incorrect classification of charges amounts to a violation of Article 14(3) of the ICCPR and section 16(1) of the Act as it fails to characterise the alleged facts in accordance with the correct legal basis and therefore it is respectfully submitted that they should be removed from the indictment.
The Chairman then adjourned the proceeding to 25th September 2011 Islam said that he wanted few more days for full preparation whilst the prosecutor Malum prayed that the proceeding should continue tomorrow.
The chairman confirmed that the charge hearing should continue on Sunday for full a day. He confirmed the Tajul Ialam would be allowed ample time to make full submission on the issue of framing charges.
Defence press briefing, Tajul Islam
Today, our first application was about recalling the cognizance order given by the tribunal. The ground of the application was, the volume no 2 of the documents, where there are 38 witness statements, was not provided to the court. But the rules of procedure clearly state that before taking cognizance every documents have to be submitted including investigation report, formal charge, evidence etc. If the tribunal, after considering everything, thinks that there is a prima facie case, they can take cognizance. But the witness statements were provided after one month from when the cognizance was taken. The things that were not in front of the court at that time, obviously there was no chance of considering those by the court at that time. So, the cognizance taken based on those reports was not properly taken and as the cognizance was not properly taken, the next procedure i.e. charge hearing can’t also be proper/appropriate as long as the cognizance hearing takes place properly again.
The court said that they were happy/satisfied/convinced with whatever they had before them at that time. We said that the law says that they have to consider everything, and thus it doesn’t fulfil the law requirement. And we also said that the documents provided later could’ve contained some things that contradict the other charges. But the court rejected our order saying that they have seen the CD documents. We said that the law says that everything, soft copy and hard copy has to be provided. So without that how the cognizance was taken? If the cognizance taking is not appropriate, then other procedures that follow will not be appropriate too.
Journo: What did you present in your argument today for the charge hearing?
The first thing that we submitted is that the crimes, for which the accused is being charged, should be defined and clear. But we have seen that the law doesn’t define them clearly. As long as we don’t know what is “crimes against humanity”, what is genocide, there can’t be any charge. We presented international examples to support that. Secondly, the evidences and witness statements that they provided are also not clear. Some charges said, Mr Sayedee, between this and this period, killed many people. But which date, which time, killed who? They said, he killed 40 people. But there’s nothing definite. They have to say who was killed, how, when; this is the requirement of law. If the charges are not definite how am I going to argue against them? We can’t argue against something that is not definite. The elements of crimes also have to be defined; otherwise it would not be a fair trial. Stephen Rapp and international community also voiced the same concern.
The crimes are not defined in the law. We cited examples of Yugoslavia, where the crimes were not defined but the judges passed orders and defined them. The crimes should be defined and trial will go on after that.
The victims’ names have to be defined too. You all observed that the documents provided by the prosecution stated, the victims’ address will be provided later. But it is a necessary element. These serious loopholes and not fulfilling the law requirements will make the framing of charge totally unlawful and that is what we tried to say today.
Journo: What about the commotion regarding the accused talking on the mobile phone today?
The court has settled this already. We don’t want to say anything more. Mr Sayedee went out and the police were with him. The prosecution lawyers came in and alleged about this unfounded thing. That was a lie, completely baseless and incorrect. But the court has already settled this and said this can’t go in the media, so we are not saying anything more.
Comment
A couple of small points
1. In terms of cognisance, a lot depends on whether the tribunal read through the second volume of witness statements that were on the CD/DVD. It appears (unless I missed something) that the tribunal at this hearing at first did not say that they had read the second volume of statements on the CD. The chairman simply made a general point that they were satisfied with what they had read and took cognisance on that basis. It was only when the prosecutors reminded the tribunal that they had received the CDs with these statements on them, that the tribunal made the point that they had read the second volume of statements. (the defence was never given this CD so they cant confirm whether or not these statements were in fact on the CDs) However it is all rather confused to know exactly what happened here so no clear conclusions can be made - though of course the tribunal does say clearly that they read them.
2. The defence position on crimes against humanity appears a bit confused to me. In their arguments on cognisance on 18 August, the defence argued that a condition for the crime against humanity in 1971 was an international conflict. In this hearing, they seemed to acknowledge that at least in 1974, an internaitonal conflict was no longer a condition. Is this a contradiction? It may be. Or it may be that the defence are saying that in 1974 the Cambodian tribunal made a decision about whether a crime against humanity could be committed without an international conflict, and now the Bangladesh tribunal must do the same in relation to 1971.
Application for recall of the order of Cognizance
This was the second application made by the defence seeking application for the order of cognisance. The first one was on 18 August, and was rejected.
The application was argued by Tajul Islam. He explained that this application was praying for the re-call of the order dated 14 July 2011 passed by the tribunal which took cognizance for offencs alleged against Sayedee under the International Crimes (tribunals) Act, 1973.
He said, that although, the prosecution submitted the formal charge against the accused on 11 July 2011 it failed to submit statements made by 38 witnesses covering 61 pages. The tribunal therefore did not have all the documents and evidence before it at the time cognizance was taken by it on 14 July 2011. He said that this has seriously prejudiced the conduct of a fair trial.
He said that the relevant part of the order dated 14 July 2011 was as follows:
“Today is fixed for taking cognizance of offence in question. The sole accused has been produced in the tribunal. Along with the formal charge, the prosecution has also filed 3(three) DVD cassettes, containing formal charge, the investigation report, the documents and the evidence in support of the prosecution case for our perusal. After perusing those materials, we are of the view that the materials of offences are prima facie available regarding the offences under section 3(2) of the Act and they disclose a prima facie case for trial. So, cognizance of offences under section 3(2) of the International Crimes (tribunal) Act, 1973 is taken against accused Delwar Hossain Sayeedi alias Delu alias Della.”He said that without being able to consider 38 witness statements, that had not been passed to it, the tribunal passed an order taking cognizance which was in violation of Rule 29(1) of the International Crimes (tribunals) Rules of Procedure, 2010 which states that “The tribunal shall take cognizance of an offence against any accused upon examination of the formal charge, the Investigation Report, the papers, documents and the evidence submitted by a Prosecutor in support thereof, if they disclose a prima facie case for trial of the accused.”
He said that as cognisance was given without the tribunal having seen these statements, the trial process will be highly prejudiced since the tribunal has taken cognizance on partial evidence.
He stated that in 7 of the counts, (namely Count nos 2, 10, 11, 14, 18, 19 and 24 of the Proposed Charge/Indictment), the prosecution has relied solely on the witness statements of witnesses contained in Volume 2. Moreover, it has also relied on these statements in relation to the other counts. As such he said the tribunal has no opportunity to consider important evidence at the time of taking cognizance and therefore that ‘the order taking cognizance was defective.’
He went onto say that in order to ensure a fair trial, the witness statements of all the witnesses are required to be considered by the tribunal at the time of taking cognizance and that therefore the order should be recalled
The tribunal chairman said, 'Look, taking cognizance is a judicial notice. If the tribunal thinks the formal charge is enough to take cognizance they can take their decision based on that. There is no question of considering any documents that were not provided. The provided documents were satisfactory to take cognizance of the offence.'
Tajul responded by saying, 'But, my lord, rule 29(1) doesn’t say anything like this. It provides that you have to take into account the documents, evidences and other papers.'
The tribunal chairman said, 'Yes, we know that. We made the rules.'
Islam responded by saying, 'Yes, of course, you made the rules and you have to abide by them. Rule 29(1) says, “... upon examination of the formal charge, the Investigation Report, the papers, documents and the evidence... ...” So everything has to be taken into account if you have to take cognizance of the offence, he said.
The chairman said, 'Mr Tajul, we have taken cognizance of the offence not based on the charge, not based on counts. We have taken cognizance of the offences according to section 3(2) of ICT act. Whatever was provided, we were satisfied and was of the view that cognizance can be taken.'
The defence lawyer said, 'My lord, the offences that you were taken into cognizance - those witness statements were not even provided. So, how can you take cognizance? Thirty eight witness statements were not even there!
He went on, 'My lord, I want to humbly submit that there was no scope of taking cognizance. As those statements were missing there can be no cognizance taken based on that point. We want to say that as cognizance of offence was taken on the offences that were not even there, there also can be charge framed on those offences.'
Haider Ali, the prosecutor then rose and said that cognizance is a ‘mental’ matter.
He also argued that, there is no scope to recall the order of taking cognizance under any law, and that though the witness bundle 2 was not submitted in paper, they has been submitted in the CDs. 'So, the cognizance was taken in the right way. There’s nothing to be misguided about,' he said.
Islam responded to this by saying that this tribunal is not guided by the criminal procedure code and that, the tribunal must apply rule 21(1) while taking cognizance. He also said that the tribunal has inherent power to recall the cognizance order for the interest of justice. He said, that the law says that each and everything has to taken into account if cognizance has to be taken. If the witness statements were missing while you were taking cognizance, the charge framed based on this can not be valid. 'The prosecution can’t just file a list of offences and without evidence you can not take cognizance. So any order passed on this point has to be recalled.'
Justice Justice ATM Fazle Kabir then passed the following order immediately:
"This is an application filed by the learned counsel for the Defence for recalling the order of taking cognizance of offence dated 14 July 2011 by this tribunal. Mr. Tajul Islam the learned counsel for the Defence took us through the submission and ubmits that the order of taking cognizance of offences was passed on 14 July 2011 by this tribunal but at that time the prosecution did not file statement of 38 witnesses before the tribunal. The learned advocate further submits that the tribunal did not get chance to go through the statements of 38 witnesses at the time of taking cognisance of offence and as a result the order of taking cognizance is defective and as such the defence is prejudiced. The learned advocate further submits since the order of taking cognizance was not based on all the documents which has resulted in prejudice to the defence. As such the order of taking cognizance may be kindly recalled in the interests of justice.
The learned prosecutor Mr. Haider Ali opposed the petition for recalling the cognizance matter and submits that as per rules they have submitted formal charge, all documents including the investigation reports along with a CD containing all statements of witnesses so the tribunal got all opportunities to go through documents before taking cognisance. The learned Prosecutor further submits that the order of taking cognizance has been made by the tribunal on the basis of formal charge and other documents and so question of recalling order of cognizance is liable to be rejected.
We have perused the order of taking cognizance dated 14 July 2011 and order of 18 August 2011, and the documents available before the tribunal and it appears that at the time of taking congnisance on 14.7.2011, formal charge along with other documents including statement of witnesses were available before the tribunal. This tribunal also considers CDs and DVDs filed by the prosecutor containing all the materials at time of taking cognisance. The order of taking cognizance is valid and already been appealed by defence and order of taking cognizance is based on mental decision of the judges. It can be quoted here that cognisance of of offences was taken on 14.7.2011 and after date and after that date the hearing on charge matter was completed by the prosecution. No defence wil make submission on charge matter. So bringing question in the midst of the charge matter his application for recalling order of congisance is misconceived and unheard of in trial procedure. We find no substance in recalling the order dated 14 July 2011 in middle of hearing the charge matter and and as such the application is rejected.’
Application against charge-framing, to discharge the accused
Tajul Islam then rose and read out rule 20 of the rules of procedure. This states that: 'At the time of submitting a formal charge in the form of a petition, it must contain the name and address of the accused person, witness, and the date, time and place of the occurrence.'
He said that the prosecution has submitted two volumes of witness statements but this information is not available on all the witness statements. He referred to the first page of witness one (I think) and said that the lack of information made in 'in violation of rule 20(1). It is hide and seek.'
The tribunal said, 'this is part of your arguments. We will consider the submission in the order. Your arguments will be disposed of when all arguments are disposed of.'
Islam then said that at that point his submission would then be 'infructuous'
He went on to say that 'It is incomplete. The documents are incomplete.
The tribunal chair then made a big point of writing the arguments down saying outloud at the same time, 'No address has been given in witness statements ...'
Tajul Islam then started to read out his written application. He said that on 4 September 2011, the prosecution submitted its proposed indictment along with a list of 68 witnesses in support of the prosecution’s case against the accused. He then set out reasons why the tribunal should issue an order directing for his discharge.
Requirements of framing of charges
Islam said that Article 14(3)(a) of the International Covenant for Civil and Political Rights (ICCPR) provides for the right to be informed of the charge: “To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him”.
Islam emphasised the words ‘promptly and in detail’, and said that this should include ‘time and place’
He said that in its General Comment No.32 the Human Rights Committee under the ICCPR stated that: “The specific requirements of subparagraph 3 (a) may be met by stating the charge either orally - if later confirmed in writing - or in writing, provided that the information indicates both the law and the alleged general facts on which the charge is based”. Islam emphasised, ‘both law and facts’
He added that the Pre-Trial Chamber at the International Criminal Court has held that the document containing the charges must include the full name of the person and any other relevant identifying information; a statement of the facts; including the time and place of the alleged crimes, which provides a sufficient legal and factual basis to bring the person or persons to trial. Including relevant facts for the exercise of jurisdiction by the Court; a legal characterization of the facts to accord both with the crimes and the precise form of participation He refered to the case of Prosecutor v. Jean-Pierre Bemba Gombo, decision on 15 June 2009, para. 208.)
At around this time Islam wanted to submit the supporting materials. The tribunal chairman said that he would take a look at those later and consider those supporting materials after Islam had placed the application.
Islam then went on that the international requirements also conforms to the standard practice in domestic criminal proceedings as provided for in section 221, 222 and 223 of the Code of Criminal Procedure. In particular section 221(5) provides that when a charge is made, it is the 'equivalent to a statement that every legal condition required by law to constitute the offence charge was fulfilled in the particular case' and section 222 of the Code provides that particulars as to time, place and person must be stated in the charge.
Islam said that this is also the procedure provided for in section 16 of the International Crimes (tribunal) Act 1973 as amended 2009 which stated that: “Every charge against an accused person shall state- a) the name and particulars of the accused person; b) the crime of which the accused person is charged; c) such particulars of the alleged crime as are reasonably sufficient to give the accused person notice of the matter with which he is charged .”
He said that this is supported by Rule 20 (1) of the Rules of Procedure which provides: “At the time of submitting a formal charge in the form of a petition, it must contain the name and address of the accused person, witness, and the date, time and place of the occurrence”.
Islam said at the time of charge framing, the alleged ‘crimes are not defined, the elements of the crime are not defined. the circumstances are vague’. He said the ‘particulars are not there. The time of the occurrence is not there. The names of the victims are not there.’ He said that if these things are absent, the case cannot be charged.
He went onto say that therefore under section 16 of the 1973 Act, the purpose of the framing of the charges is to characterize the alleged facts in accordance with the legal elements of a crime so as to provide the accused with the opportunity to raise his defence.
Islam said that there is ‘no contradiction’ between local and international law. He finished this section by saying that ‘it is respectfully submitted that the charges cannot be framed as they provide and rely on both an insufficient legal basis and contain insufficient factual information.’
Challenges to the Indictment: Insufficient legal basis: Islam then said that the principle of nullum crimen sine lege [no crime without law] is enshrined in Article 15 (1) ICCPR: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby”.
Islam said that the right provided for in Article 15(1) ICCPR also provides for the right to legal certainty whereby all crimes are to be adequately detailed in law. It prohibits the prosecution and punishment under vague laws that do not clearly proscribe the conduct for which one has been punished. He refered to concluding observations of the Human Rights Committee Portugal in 1999 where the Human Rights Committee stated its concern over the “creation of vague and insufficiently defined (or ‘abstract’) offence”.
The lawyer said that on 6 September 2000 Bangladesh acceded to the ICCPR and in doing so became bound by the rights and obligations established by the ICCPR and its executive monitoring body, the HRC. He argued that under Article 2(1) of the ICCPR: “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,” and that according to the HRC, the ICCPR requires its “effective precedence over any inconsistent legislative act”.
He said that this was consistent with the overarching pacta sunt servanda principle of the Vienna Convention on the Law of Treaties , namely that treaty based obligations must be complied with in good faith. Article 26 of the Vienna convention provides that: “Every treaty in force is binding upon the parties to it and must be performed in good faith”. Islam then quoted from article 25 of the constitution which states that the state will ‘respect international law’.
The tribunal chairman then said ‘does respect mean binding? It is only persuasive’ Justice Zahir then made a point that this principle should also apply to the United States but they do not abide by international law.
Islam went on to say that article 27 of the Vienna convention provides: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” He added that it is widely known that the provisions of Vienna treaty reflect customary international law and are applicable to all states.
He pointed out that in a letter to the Permanent Missions of all Member States to the United Nations dated 12 April 2006, the Government of Bangladesh voluntary pledged to honour “Bangladesh’s deep commitment to the promotion and protection of human rights of all its citizens” and highlighted “Bangladesh’s adherence to all major human rights instruments”.
He stated that the principle of legal certainty is a non-derogable right and fundamental part of the rule of law as evidenced by the introduction of the ICC “Elements of Crimes” which complements the ICC Rome Statute. At the Rome Conference, it was recognised that there was “a need to define crimes with the clarity, precision and specificity that many jurisdictions require for criminal law” and that “it was of the upmost importance to define the constituent elements of those crimes in a precise manner, in view of the cardinal importance, inter alia, of the principle of nullum crimen sine lege”
He argued that the ICC “Elements of Crimes” illustrates the current required practice for courts and tribunals concerned with international crimes to detail the composite elements of the crimes. That although the events in question occurred in 1971, proceedings before this tribunal are taking place in 2011 and therefore should adhere to this current practice.
On questioning by the tribunal chairman, Islam said that there was ‘no contradiction’ between saying that the appropriate procedure should be the current procedure, but the offences that apply should be those that existed in 1971. There is ‘no inconsistency’ he said. -
The lawyer argued that the constituent elements of a crime are essentially the required ingredients that need to be met with by the alleged facts in order to establish that a crime has been committed and that without such elements, the prosecution are unable to prove beyond a reasonable doubt that a crime has been committed nor can the defence challenge the case made against it.
He said that the difficulty faced by the lack of definition of crimes listed under section 3 (2) of the 1973 Act is evident within the proposed indictment. He then went through the different offences:
Crimes against Humanity: He said that the prosecution had submitted that the crimes within the jurisdiction of this tribunal were internationally recognised and that no conflict remained between 1973 Act and international laws.
Furthermore, it noted that the definitions within section 3(2) of the 1973 Act were all present in the Bangladesh Penal Code.
He said that within its proposed indictment the prosecution does attempt to provide some legal elements within the charges. This is illustrated by the inclusion of the phrase “widespread and systematic attack” in paragraph 6 of the prosecution’s petition for formal charge disclosed to the defence on 27 July 2011.
He said that during the hearing on 4 September 2011, Justice Jahir did enquire as to whether an attack must be widespread or systematic in order to constitute a crime against humanity and that the tribunal was of the opinion that although the widespread or systematic element was a component of crimes against humanity within the Rome Statute, it was not an element within the Statute for the International Criminal tribunal for the former Yugoslavia.
He said that the prosecution submitted that this point was for the discretion of this tribunal, but that the defence submitted that currently the Bangladesh Penal Code cannot be used to provide definition of crimes within section 3 (2) of the Act as section 19 (1) of the Act expressly states that the tribunal is not bound by any technical rules of evidence thus removing the use of the Criminal Evidence Act and the Criminal Procedure Act. The tribunal is therefore not entitled under the provisions of the Act to consider elements contained within the domestic criminal procedure rules.
He went onto say that the area of international criminal law is a complex field accompanied by a wealth of jurisprudence. For example, although the statute for the ICTY does not provide for a widespread and systematic element within its definition of crimes against humanity in Article 5 the jurisprudence of the court differs and held that the ICTY Appeals Chamber in Prosecutor v. Dusko Tadic held that:
“The Appeals Chamber agrees with the prosecution that there is nothing in Article 5 to suggest that it contains a requirement that crimes against humanity cannot be committed for purely personal motives. The Appeals Chamber agrees that it may be inferred from the words “directed against any civilian population” in Article 5 of the Statute that the acts of the accused must comprise part of a pattern of widespread or systematic crimes directed against a civilian population and that the accused must have known that his acts fit into such a pattern. There is nothing in the Statute, however, which mandates the imposition of a further condition that the acts in question must not be committed for purely personal reasons, except to the extent that this condition is a consequence or a re-statement of the other two conditions mentioned” (IT-94-1-A, Appeals Chamber Judgment, 15 July 1999, para. 248)Islam then emphasised that although the wording of the ICTY law does not include ‘widespread and systematic’, the caselaw states that this element is needed.
He said that the complexity of the definitions of crimes is furthered by the fact that this tribunal has jurisdiction over events that occurred in 1971. That Article 15 (2) ICCPR provides for the only exception to the nullum crimen sine lege principle under Article 15 (1) ICCPR: “Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations)”.
He said that as a result the applicable law in these proceedings is customary international law as it stood in 1971 at the time the alleged events in question occurred.
He then said, that applying the Charter of the International Military tribunal, London (“Nuremberg Charter”), on which the 1973 Act was originally based, under customary international law in 1945 a number of crimes listed in section 3 (2) of the Act were only applicable in non-international armed conflicts, namely crimes against humanity, crimes against peace, war crimes and violations of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949.
He said that this was illustrated with the definition of crimes against humanity. Under Article 6(c) of the Nuremberg Charter, crimes against humanity in 1945 was defined as: “Namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political or racial grounds in execution of or in connection with any crime within the jurisdiction of the tribunal, whether or not in violation of the domestic law of the country where perpetrated. Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any person in execution of such plan”.
He said that the term “in execution of or in connection with any crime within the jurisdiction of the tribunal” indicates that a nexus of an international armed conflict is required as the other two crimes within the jurisdiction of both International Military tribunal’s were war crimes and crimes against peace, both of which were de facto linked to international armed conflicts as discussed below.
He then went onto say that the definition of crimes against humanity under section 3 (2) (a) of the Act is largely based on the definitions under Article 6 (c) Nuremberg Charter with the exception that it excludes the words: “in execution of or in connection with any crime within the jurisdiction of the tribunal” thus removing the required nexus of an international armed conflict. He added that the required nexus between crimes against humanity and international armed conflicts remained customary international law even up until 1993 with the creation of the ICTY.
He then said that as previously held by the tribunal, the conflict in Bangladesh in 1971 is not classified as an international armed conflict between two sovereign states and herefore the acts alleged to have occurred in 1971 cannot be classed as crimes against humanity. 'To do so would amount to prosecuting an individual for an act that was not criminal according to customary international law in 1971. This would be in breach of the principle of legality under Article 15 (1) ICCPR.'
He then however went onto argue that the complexity of this field of law is further evidenced by the approach taken by the Extraordinary Chamber of the Courts of Cambodia which, similarly to the ICT, is a court in operation today and exercising jurisdiction over crimes committed between 1975 and 1979. The ECCC Trial Chamber, he said, has determined that there was no nexus requirement of an international armed conflict in the definition of crimes against humanity under customary international law in 1975:
“In particular, the Chamber notes that Article 5 of the ECCC Law does not require a link between crimes against humanity and armed conflict. Although Article 6(c) of the Nuremberg Charter required a nexus between crimes against humanity and armed conflict, such a nexus was not included in the 1945 Control Council Law No. 10, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the 1954 International Law Commission’s Draft Code of Offenses against the Peace and Security of Mankind, the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, and the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid. The notion of armed conflict also does not form part of the current-day customary definition of crimes against humanity. International tribunals that have subsequently considered the issue have also found that the notion of crimes against humanity existed independently from that of armed conflict under customary international law prior to 1975. The ICTY Appeals Chamber has stated that the armed conflict requirement in Article 6(c) of the Nuremberg Charter was a jurisdictional issue, thus implying that it was not required under customary international law even in 1945. The Grand Chamber of the European Court of Human Rights has noted that, while the nexus with armed conflict initially formed part of the customary definition of crimes against humanity, this nexus may no longer have been relevant as of 1956. The Group of Experts for Cambodia appointed pursuant to General Assembly Resolution 52/135 similarly concluded that “[t]he bond between crimes against humanity and armed conflict appears to have been severed by 1975.” The Chamber therefore considers that the lack of any nexus with armed conflict in Article 5 of the ECCC Law comports with the customary definition of crimes against humanity during the 1975 to 1979 period (footnotes omitted)”. (Prosecutor v. Kaing Guec Eav (Duch), No. 001-18-07-2007/ECCC/TC, Trial Chamber Judgment, 26 July 2010, paras. 291-292.)
He then went onto say that whilst removing the nexus requirement in the definition of crimes against humanity, the ECCC did find that the following constituent elements did exist within the definition of crimes against humanity under general customary law in the 1970’s:
“Offences listed in Article 5 of the ECCC Law can constitute crimes against humanity only if the following chapeau prerequisites are established to the required standard: (i) there must be an attack; (ii) it must be widespread or systematic; (iii) it must be directed against any civilian population; (iv) it must be on national, political, ethnical, racial or religious grounds; (v) there must be a nexus between the acts of the accused and the attack; and (vi) the accused must have the requisite knowledge”. (Prosecutor v. Kaing Guec Eav (Duch), No. 001-18-07-2007/ECCC/TC, Trial Chamber Judgment, 26 July 2010, para. 297).
He said that for these reasons, 'it is respectfully submitted that this tribunal should expressly articulate its position in this area in order to provide specificity and precision to the crimes listed under section 3 (2) of the 1973 Act. Both the parties and this tribunal must know the framework within which any conviction or acquittal will be based upon. It is respectfully submitted that clear definitions and elements of crimes would establish a fair trial as well as prevent future instances of confusion as evidenced in the hearing of 4 September 2011. It is requested that this tribunal should provide detailed definitions of the crimes that are applicable in proceedings before it, taking into account both the removal of evidentiary rule under section 19 (1) of the Act and the retroactivity principles pursuant to Articles 15 (1) and (2) of ICCPR.'
Requisite knowledge: He said that an important constituent element of a crime is the requisite knowledge that must be proved by the prosecution in order to find an accused guilty of an offence and that the prosecution fails to indicate any level of intention on behalf of the accused within the proposed indictment or its submissions made on 4 September 2011. This in reference to the offences of crimes against humanity, genocide and the general allegation of abetment and complicity put forward by the prosecution, though he said that admittedly, the reason for this may be the fact that under the respective provisions of section 3(2)(a),(g) and (h) of the 1973 Act there are no constituent elements detailing the requisite knowledge.
He said that even where the offence under section 3(2) of the Act provides for the requisite knowledge of a crime, the prosecution has failed to include this in either its proposed indictment or its submission. For example, under section 3 (2) (c) of the Act, genocidal acts can only be proven if they have been “committed with an intent to destroy in whole or in part, a national, ethnic, racial, religious or political group”. That this is not specified by the prosecution under paragraphs 26 to 30 of the proposed indictment.
He said that ‘intention is not mentioned. It is completely absent’
He then read out the paragraphs from the indictment:
On 4th May 1971, between 11 A.M and 5:30/6 P.M., (a) Shot and killed 20 unarmed, innocent Bengali gathered at the Middle Masimpur bus stand. (b) On the above mentioned date and time, attacked and killed 13 innocent, unarmed Hindu people including, Bijoy Krishno Mistry, Upendronath, Jogendronath Mistry, Shurendronath Mistry, Motilal Mistry, Jogesshor Mondol, Shuren Mondol and others. (c) On the above mentioned date and time, shot and killed Debedronath Mondol , Khogendro Nath, Pulin Bihari, Mukondo bala at back of LGED adjacent to the local Dhopabari (laundry). 27.
On 5th may 1971, approximately between 2 P.M and 6 P.M. captured from different places in Pirojpur and then shot and killed the SDPO of Pirojpur- Foizur Rahman Ahmed, the SDO- Md. Abdur Razzak, Deputy Magistrate – Saif Mizanur Rahman and others at the river bank of Boleshor river.
One day Between 23rd May and 31st May of 1971, captured and brought the brother of Bimol Hawlader and his father to the Kuriana High School camp and captured and brought another 2500/3000 unarmed and innocent Bengali people to Korina Guava garden and therein shot and killed them.
One day between 25th May and 31st July, attacked Hoglabunia village and from therein captured 10 people including Toroni Sikder, her son Nirmol Sikder, Shamkanto Sikder, Banikanto Sikder, Horolal Kormokar, son of Lalu Halder of Maitbhangar, Prokash Sikder , Nirmol Sikder, brother in law of Nirmol Sikder and others and handed over to the Pakistan army camp at Pirojpur and thereafter killed or instructed to kill the said people and disposed of their bodies at the river; 30. One day between 4th May and 16th December of 1971, captured 14 hindu people including Haralal Malaker, Aurokumar Mirza, Toroni Kanto Sikder, Nondo Kumar Sikder and others and handed over to the Pakistan army camp at Pirojpur and thereafter killed the said people and disposed of their bodies at the river;
He said that at the hearing on 4 September 2011, Justice Jahir enquired as to why killings could be listed as crimes against humanity and then also as genocide. It is respectfully submitted that this inquisition arose from the omitted requisite knowledge components within each charge and the general lack of elements of each crime as submitted above.
One of the judges then said, ‘No elements of the crimes are in the act. That is why there is a problem.’
At around this point Sayedee then was allowed to go outside to the toilet. Suddenly the prosecutor, Zead-al-Malum got up and accused Sayedee of making a mobile phone call. Tajul checked with the lawyer who accompanied (Sayedee and the police) who denied it. There was then a big commotion about alleged remarks made by the prosecutor against Islam. The tribunal pacified the situation by saying that there was a misunderstanding and that he would subsequently interview the police and see what happened.
Modes of Liability: Islam said that under paragraph 1 of the proposed indictment, the accused is accused of establishing Razakar Force camps at Parerhaat Rajlakkhi Girls School and the premises of Fakir Das located at Parerhaat Port. He then read this out:
‘From 3rd May 1971 to 16th December 1971, established Razakar camps at Parerhaat Rajlakkhi Girls School and the premises of Fakir Das, located at Parerhaat port, to commit murder, arson, rape and other inhuman torture and oppression against the Hindu community, in furtherance of a long term pre planned conspiracy to make the Bengali people an electorate minority.’About this, he said, the prosecution has failed to indicate the relevant provision of the 1973 Act under which this activity can be classified as a crime, that in order to determine whether the facts accord to the crime, the prosecution must indicate the specific offence it is charging by reference to the relevant provision in of the 1973 Act as required by section 16 (1) of the 1973 Act.
He then reads out section 16(1) of the 1973 Act which states:
‘Every charge against and accused person shall state: - (a) the names and particulars of the accused person (b) the crimes of which the accused person is charged (c) such particulars of the accused crime as are reasonably sufficient to give the accused person notice of the matter with which he is charged.’He went onto say that the accused is also charged with “abetment and complicity” under section 3(2)(g) and (h) of the 1973 Act at paragraph 30 of the proposed indictment, and stated that the formation of an auxiliary force, and the general allegation of abetment and complicity are, if anything, modes of liability of a crime and not crimes within themselves.
He said that furthermore, the necessary elements of what constitutes abetment or complicity are not defined under section 3(2)(g) and (h) of the 1973 Act and that without such elements it is difficult to determine the difference in the two types of participation. 'For example, using the standard definitions found in the Oxford Dictionary, abetment (encouraging or assisting someone in his wrongdoing) is naturally a form of complicity (the fact or condition of being involved with others in an unlawful activity). The two modes of liability are not distinct from one another as abetment is seen as the “weakest form of complicity”. Without knowing the constituent elements of ‘abetment’ and ‘complicity’ there is no standard criteria against which the facts must be judged within.'
He said that throughout the indictment the prosecution alleges that the accused has “committed” a number of offences (Paragraphs 1, 5, 6, 8, 9, 10, 11, 12, 13, 19, 20, 21, 25, 30). 'However, the prosecution fails to specify whether the accused physically committed the acts himself or whether it was committed through his alleged participation and involvement with “Parerhaat Razakar Force”. If it is the latter, the prosecution have failed to develop the hierarchy, organisation and policy of this group and omitted any named individual members,' he said.
He argued for this reason the prosecution have failed to establish the level of involvement of the accused and in which manner he participated, assisted and planned the alleged offences.
Incorrect Classification: He pointed out that at the hearing on 4 September 2011, Justice Jahir enquired as to how the looting of two bronze plates of Hindu and Suren amounted to a crime against humanity, but that the prosecution submitted in reply that the amount of property looted was not a consideration to be taken into account and that this activity amounted to extermination and torture as a crimes against humanity.
A discussion then took place between tribunal and Islam about what amounted to torture, with Justice Jahir saying that ‘this could result in pain, it could amount to torture.’ Jahir also enquired why his name was referred to in several places of the discharge application and that he would have to stop making comments or saying anything if he was further referred in any future application. He said that he wanted to discus different aspects of the law as it was new.
Islam then continued by saying that the Cambodian Trial Chamber has determined that under customary international law in 1971, extermination was defined in the following way:
“Extermination, whose customary status is also undisputed. The perpetrator’s role in the death of persons on a massive scale may be remote or indirect. Actions constituting extermination include creating conditions of life that are aimed at destroying part of a population, such as withholding food or medicine. There is no minimum threshold for the number of victims targeted. Rather, the question of whether the requirement of scale has been met is assessed on a case-by-case basis against all relevant circumstances Nonetheless, it has been suggested that one or a limited number of killings would not be sufficient to constitute extermination. Extermination contemplates acts or omissions that are collective in nature rather than directed towards specific individuals. There is however no requirement that the perpetrator intended to destroy a group or part of a group to which the victims belong. Knowledge of a “vast scheme of collective murder” is not an element of extermination. It must be shown that the perpetrator acted with “the intent to kill persons on a massive scale, or to inflict serious bodily injury or create conditions of life that lead to death in the reasonable knowledge that such act or omission is likely to cause the death of a large number of persons.” is characterized by an act, omission or combination of each that results in the death of persons on a massive scale."
He argued that the same trial Chamber also determined that under customary international law in the 1970’s torture was defined in the following way:
“The crime of torture is proscribed and defined by numerous international instruments, including the 1975 United Nations General Assembly Declaration on Torture, adopted by consensus, and the 1984 Convention against Torture. The definition in the 1984 Convention against Torture, which closely mirrors that of the 1975 General Assembly Declaration, has been accepted by the ICTY as being declaratory of customary international law. The Chamber accordingly finds that this definition had in substance been accepted as customary by 1975. Torture comprises the infliction, by an act or omission, of severe pain or suffering, whether physical or mental”.
He then submitted that the crime of looting fails to meet the thresholds defined under the definitions of extermination or torture pursuant to customary international law in the 1970’s.
He then said that under paragraph 25 of the proposed indictment the prosecution alleges that the accused forcefully converted a number of individuals of the Hindu faith to Islam. That this is incorrectly classified as rape as a crime against humanity.
Chairman interrupted and said that this might be a printing mistake and would be corrected at the time of framing charge.
Islam argued that the incorrect classification of charges amounts to a violation of Article 14(3) of the ICCPR and section 16(1) of the Act as it fails to characterise the alleged facts in accordance with the correct legal basis and therefore it is respectfully submitted that they should be removed from the indictment.
The Chairman then adjourned the proceeding to 25th September 2011 Islam said that he wanted few more days for full preparation whilst the prosecutor Malum prayed that the proceeding should continue tomorrow.
The chairman confirmed that the charge hearing should continue on Sunday for full a day. He confirmed the Tajul Ialam would be allowed ample time to make full submission on the issue of framing charges.
Defence press briefing, Tajul Islam
Today, our first application was about recalling the cognizance order given by the tribunal. The ground of the application was, the volume no 2 of the documents, where there are 38 witness statements, was not provided to the court. But the rules of procedure clearly state that before taking cognizance every documents have to be submitted including investigation report, formal charge, evidence etc. If the tribunal, after considering everything, thinks that there is a prima facie case, they can take cognizance. But the witness statements were provided after one month from when the cognizance was taken. The things that were not in front of the court at that time, obviously there was no chance of considering those by the court at that time. So, the cognizance taken based on those reports was not properly taken and as the cognizance was not properly taken, the next procedure i.e. charge hearing can’t also be proper/appropriate as long as the cognizance hearing takes place properly again.
The court said that they were happy/satisfied/convinced with whatever they had before them at that time. We said that the law says that they have to consider everything, and thus it doesn’t fulfil the law requirement. And we also said that the documents provided later could’ve contained some things that contradict the other charges. But the court rejected our order saying that they have seen the CD documents. We said that the law says that everything, soft copy and hard copy has to be provided. So without that how the cognizance was taken? If the cognizance taking is not appropriate, then other procedures that follow will not be appropriate too.
Journo: What did you present in your argument today for the charge hearing?
The first thing that we submitted is that the crimes, for which the accused is being charged, should be defined and clear. But we have seen that the law doesn’t define them clearly. As long as we don’t know what is “crimes against humanity”, what is genocide, there can’t be any charge. We presented international examples to support that. Secondly, the evidences and witness statements that they provided are also not clear. Some charges said, Mr Sayedee, between this and this period, killed many people. But which date, which time, killed who? They said, he killed 40 people. But there’s nothing definite. They have to say who was killed, how, when; this is the requirement of law. If the charges are not definite how am I going to argue against them? We can’t argue against something that is not definite. The elements of crimes also have to be defined; otherwise it would not be a fair trial. Stephen Rapp and international community also voiced the same concern.
The crimes are not defined in the law. We cited examples of Yugoslavia, where the crimes were not defined but the judges passed orders and defined them. The crimes should be defined and trial will go on after that.
The victims’ names have to be defined too. You all observed that the documents provided by the prosecution stated, the victims’ address will be provided later. But it is a necessary element. These serious loopholes and not fulfilling the law requirements will make the framing of charge totally unlawful and that is what we tried to say today.
Journo: What about the commotion regarding the accused talking on the mobile phone today?
The court has settled this already. We don’t want to say anything more. Mr Sayedee went out and the police were with him. The prosecution lawyers came in and alleged about this unfounded thing. That was a lie, completely baseless and incorrect. But the court has already settled this and said this can’t go in the media, so we are not saying anything more.
Comment
A couple of small points
1. In terms of cognisance, a lot depends on whether the tribunal read through the second volume of witness statements that were on the CD/DVD. It appears (unless I missed something) that the tribunal at this hearing at first did not say that they had read the second volume of statements on the CD. The chairman simply made a general point that they were satisfied with what they had read and took cognisance on that basis. It was only when the prosecutors reminded the tribunal that they had received the CDs with these statements on them, that the tribunal made the point that they had read the second volume of statements. (the defence was never given this CD so they cant confirm whether or not these statements were in fact on the CDs) However it is all rather confused to know exactly what happened here so no clear conclusions can be made - though of course the tribunal does say clearly that they read them.
2. The defence position on crimes against humanity appears a bit confused to me. In their arguments on cognisance on 18 August, the defence argued that a condition for the crime against humanity in 1971 was an international conflict. In this hearing, they seemed to acknowledge that at least in 1974, an internaitonal conflict was no longer a condition. Is this a contradiction? It may be. Or it may be that the defence are saying that in 1974 the Cambodian tribunal made a decision about whether a crime against humanity could be committed without an international conflict, and now the Bangladesh tribunal must do the same in relation to 1971.
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