Tuesday, July 3, 2012

1 Apr 2012: Kamruzzaman charge response

The defence counsel prayed for an adjournment relating to proceedings against Motiur Rahman Nizami as their senior counsel was absent. A new date of 8th April, 2012 was agreed.

In the absence of Abdur Razzzak, the defence counsel Munshi Ahsan Kabir then started reading the written application against the charge framing of charges against Md. Quamaruzzaman. (This follows on from the frame charging application.)
1. It is recalled that on 31 January 2012 this Hon’ble Tribunal took cognizance of offences under sections 3 (2), 4 (1) and 4 (2) of the International Crimes (Tribunal) Act 1973 as amended 2009 (hereinafter: IC(T)A) against the Accused-Petitioner, stating that the Prosecution had established a prima facie case as required under Rule 29 (1).

2. The Tribunal ordered the Prosecution to serve the relevant papers and documents on the Accused-Petitioner on 7th January 2012. The Prosecution complied with this order and the Defence received the Formal Charge along with the statements of 46 witnesses in support of the Prosecution’s case against the Accused-Petitioner.

3. That the Petitioner sets out in the paragraphs below a brief history of the initiation of the present proceedings against the accused petitioner under the International Crimes (Tribunals) Act 1973 in response to the statements made in the Formal Charge.

4. That it is the political campaign of the ruling party to destroy the Bangladesh Jamaat-e-Islami (“Jamaat”). Immediately after coming to power in January 2009, it began its harassment of against Jamaat. Although Jamaat is a lawful party with two Members of Parliament, the office of Jamaat is occupied by the Police. No one can enter or leave Jamaat office without being subjected to scrutiny by the Police.

5. That according to latest information over 2000 cases have so far been instituted against more than 30000 Jamaat leaders and workers across the country. Each of the Central Leaders including the Amir and the Secretary General are facing over a dozen false cases including sedition charges. The number of cases lodged against the Jamaat leaders are on the increase. Those who are getting bails from the courts (lower or superior) are mostly arrested on release from the jail gate in connection with another case. The initiation of these proceedings under the IC(T)A against the accused petitioner is a continuation of the harassment of the Jamaat members.

6. The Petitioner is a renowned politician, writer, journalist and Islamic thinker. He was born in Sajbarkhila, a Village of Sherpur District on the 4th of July 1952. His father Alhaj Mvi. Insan Ali Sarkar was a businessman. The petitioner started his education in his native village. He completed his Primary education from Charkumri Government Primary School and passed Secondary School Certificate Examination in 1967 from Sherpur G.K.M Institute. He passed the higher Scondary School Certificate Examination in 1972, Bachelor of Arts B.A in 1974 and Master of Arts in Journalism in 1976.

7. That the Petitioner always stood first at school and was awarded with Residential Scholarship in Class Eight from Sherpur G.K.M Institute. He passed the S.S.C Examination securing 1st Division with 4 letters (A+) and was awarded residential Scholarship. He passed the B.A Examination with distinction. He completed his M.A from Dhaka University in Journalism.

8. The petitioner started his professional career with Journalism. While in College he worked in a national daily. He joined as an Executive Editor of the monthly Dhaka Digest in January1 980. Thereafter, he took the charge of well circulated Weekly Sonar Bangla as it’s Editor in January 1981 and till today he is doing the same job. He also joined the Daily Sangram in November 1983 and served as the Executive Editor till 1993. The petitioner is also a good writer. He has written a numbers books, five of those were published. Moreover, many of his articles were published in different newspapers and Journals on Politics and International Affairs.

9. That the Petitioner joined Jamaat city unit in October 1979 and took oath as Rukun (member) on the 16th December 1979. He was appointed as the Joint Secretary of Dhaka City Jamaat during 1981-82 and Publicity Secretary of Central Jamaat 1983-1991. From 1992 he has been working as the Assistant Secretary General of Jamaat. He played a vital role as the member of Jamaat political and Liaison committee in the movement of restoration of democracy in Bangladesh from 1983-90 and in the movement for Caretaker Government during 1993-95.

10. That following the surrender of the Pakistan Army and their auxiliary forces in December 1971 to the Joint Command of Bangladesh and Indian Forces, all the Prisoners of War were taken to India. 16 months after the surrender, in April 1973, the Government of Bangladesh published a notification that following investigation, the Government has identified 195 members of the Pakistan Army as alleged war criminals. It was further announced that a law would be promulgated soon to try those 195 alleged war criminals. In order to pass a legislation to try the alleged war criminals, the Constitution (1st Amendment) Act was passed on 15th July 1973 to deny fundamental rights and constitutional rights to those against whom allegations of whom war crimes have been made. Under the provisions of the First Amendment, the right to move the Supreme Court under Article 102 of the Constitution or for any other remedy was denied to them. Following the First Amendment, on 20th July 1973, Parliament passed the International Crimes (Tribunal) Act 1973. It will be seen from the Parliamentary debates preceding the passing of the 1973 Act, that the intention of Parliament was to try the 195 Prisoners of War for alleged war crimes.

11. The Petitioner was not included in the list of 195 Prisoners of War.

12. In February 1974, Pakistan recognized Bangladesh. In April 1974, a tripartite agreement was signed by the Foreign Ministers of Bangladesh, India and Pakistan, in which it was stated that the 195 Prisoners of War had been granted clemency by the Government of Bangladesh. Following the signing of this tripartite agreement, all Prisoners of War were sent to Pakistan without any trial. A chapter in history was closed.

13. That as stated above the petitioner about 19 years of age during the Liberation War of 1971. No allegation of war crimes was brought against him during or after the War. No proceedings were ever commended against him under the Penal Code or the IC(T)A in relation to any crime committed during the War. In fact, only after the petitioner joined active politics allegations of war crimes have been made against him. The allegations were made when he became active member of Bangladesh Jamaat-e-Islami. In fact he is now being tried for war crimes solely because he is a top ranking leader of the Bangladesh Jamaat-e-Islami which is one of the major opposition parties in the country. It is only on 21st July 2010, almost 40 years after the commission of the alleged war crimes, the War Crimes Investigation Agency started formal investigation against him by filing a Complaint Register resulting in the lodging of Formal Charge on 12th January 2012. This delay in the starting of criminal proceedings against the Petitioner is totally unprecedented in the history of war crimes and proves conclusively that this is a prosecution for a political purpose.

14. The Second World War came to end in the Western front in August 1945. The first phase of the Nuremburg which was the first war crimes trial in modern history, started on 20th November 1945 and ended on 1st October 1946. The list of the war criminals was prepared during the War , the particulars of the offence were also prepared during the War and the trial started within a reasonable period.

15. In this regard it stated that on 19th January 1946, in the immediate aftermath of the Second World War, the International Military Tribunal for the Far East (also known as the Tokyo War Crimes Tribunal) was set up. Similarly, immediately following the breakup of the former Yugoslavia and the cessation of hostilities, the International Crimes Tribunal for Former Yugoslavia (ICTY) was established by a UN Security Council Resolution 827 dated 25th May 1993. In Rwanda as well following the end of the war, the International Crimes Tribunal for Rwanda (ICTR) was established by UN Security Council Resolution 955 dated 8th Novemnber 1994. However, in the instant case, the International Crimes (Tribunal), Dhaka was established 40 years after the end of Liberation War in 1971.

16. Furthermore, Radovan Karadic and Radco Mladic were indicted soon after the cessation of hostilities in Former Yugoslavia. Mladic was indicted on 25.7.1995. He was arrested from hiding on 26.5.2011 and charged on 3rd June 2011. Similarly, Radovan Karadic was indicted on 25.7.1995. He was arrested in Serbia and immediately taken into the custody of the Tribunal on 30th July 2008. However, as above-mentioned, in the present case, there has been a delay of 40 years in instituting proceedings against him.

17. This long and inordinate and inexplicable delay in bringing the charges against the Petitioner proves conclusively that because of the Petitioner’s political rivalry with the party in power, details of which have been stated in the paragraphs above, the Petitioner has been falsely implicated in the case.

18. The Defence recalls that Rule 37 of the Hon’ble Tribunal’s Rules of Procedure provides:

“When the accused appears or is brought before the Tribunal, and if the Tribunal, upon consideration of record of the case and documents submitted therewith and after giving the prosecution and the accused an opportunity of being heard, finds that there is no sufficient ground to presume that the accused has committed an offence, it shall discharge the accused and record its reasons for so doing”.

19. That for the following reasons the Accused-Petitioner prays that this Hon’ble Tribunal issues an order directing for his discharge.

20. There are a number of requirements that must be met in order for an Accused-Petitioner to be sufficiently charged. These requirements are provided for in both domestic and international law. The Tribunal’s own legislative structure provides for certain particulars to be provided for by the Prosecution in its proposed charges against an accused. Section 16 IC(T)A provides that:

“Every charge against an accused person shall state-
i. the name and particulars of the accused person;
ii. the crime of which the accused person is charged;
iii. such particulars of the alleged crime as are reasonably sufficient to give the accused person notice of the matter with which he is charged”.

The use of the word “shall” in section 16 ICT(A) indicates that these requirements are mandatory.

21. 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”.

22. It is therefore submitted that under the framework provided for by section 16 IC(T)A, 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-Petitioner with the opportunity to raise his defence. This is a practice developed in 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”. Section 222 of the Code provides that particulars as to time, place and person must be stated in the charge.

23. Both the IC(T)A framework and domestic criminal practice are in conformity with international standards. The Tribunal will be familiar with Article 14 (3) (a) of the International Covenant for Civil and Political Rights (hereinafter: ICCPR) which 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 (emphasis added)”.

24. This right under Article 14 (3) (a) has been discussed by the Human Rights Committee (hereinafter: HRC), which is tasked with administrating and interpreting ICCPR provisions. In its General Comment No.32 the HRC stated: “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”.

25. As Bangladesh is a state party to the Rome Statute for the International Criminal Court (hereinafter: ICC) the Tribunal will recall both Article 67 (1) ICC, which guarantees the above right, as well as the practice of the Pre-Trial Chamber at the International Criminal Court which 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 (Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, Decision Pursuant to Article 61 (7) (a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 208.).

26. The purpose of this fundamental right provided for in international and domestic law, is to provide the accused with the information necessary for the preparation of his defence in order to uphold fair trial guarantees. It is respectfully submitted that the current charges against the Accused-Petitioner cannot be framed as they provide and rely on both an insufficient legal basis and contain insufficient factual information and as such would result in an unfair trial by both domestic and international standards.

27. That on page 108 of the Formal Charge, the Prosecution prays that the Tribunal to take judicial notice of the commission of “crimes against humanity, crimes against peace, genocide, war crimes, violation of Geneva Convention of 1949, other crimes under international law” and the fact that these crimes were committed by Pakistani Military with effective and sole contribution from “Jamaat-e-Islami, Islami Chattra Sangha, Peace Committee, Razakar force, Al-Badr force, Al-Shams force, Al-Mujahid”. This request is submitted under section 19 (3) IC(T)A which provides:

“A Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof”.

28. Facts of common knowledge have been defined in the jurisprudence of ad hoc international tribunals as facts that are “so notorious, or clearly established or susceptible to determination by reference to readily obtainable, and authoritative sources that evidence of their existence is unnecessary” (Prosecutor v. Semanza ICTR -97-20, Decision on the Prosecutor’s Motion for Judicial Notice and Presumptions of Fact pursuant to Rules 94 and 54, 3 November 2000, para. 25. See also Prosecutor v. Perisic IT-94-81-PT, Decision on Prosecution’s Motion for Adjudicated Facts Concerning Sarajevo, 26 June 2008, paras. 13-17; Prosecutor v. Sesay et al. SCSL-04-15-PT, Decision on Prosecutions Motion for Judicial Notice and Admission of Evidence, 24 June 2004).

29. Therefore when the International Criminal Tribunal for Rwanda took judicial notice of the fact that genocide took place in Rwanda in 1994, it was on the basis that:

“Trial and Appeal Judgments thereby produced (while varying as to the responsibility of particular accused) have unanimously and decisively confirmed the occurrence of genocide in Rwanda, which has also been documented by countless books, scholarly articles, media reports, U.N. reports and resolutions, national court decisions and government and NGO reports”. Prosecutor v. Karamera et al. ICTR-98-44-AR73(C), Decision on Prosecutor’s Interlocutory Appeal of Decision on Judicial notice, 16 June 2006, para. 35).

30. It is respectfully submitted that the commission of crimes listed in paragraph 12 above have not been previously established in previous legal proceedings or by independent, international authorities. Nor is it “so notorious” or “clearly established” that these alleged crimes were committed by the Jamaat-e-Islami, Islami Chatra Sangha, Peace Committee, Razakar force, Al-Badr force, Al-Shams force or Al-Mujahid force.

31. Indeed if it was a fact of common knowledge that these crimes were committed by the abovementioned forces then this would be in direct conflict with Counts 1 to 8 in which the Prosecution seeks to charge the accused with the commission of genocide and alternative forms of crimes against humanity.

32. Furthermore, it is submitted that the Prosecution’s request for judicial notice has been presented incorrectly. This request ought to have been made in a separate application allowing for the proposed charge document to include factual basis for each count alleged. In requesting judicial notice in its charge document, the Prosecution has failed to provide the Accused-Petitioner with sufficient notice of charges brought against him.

33. For this reason it is submitted that judicial notice is not taken of the alleged facts listed on page 108 of the proposed charge document.

34. That As abovementioned, section 16 ICT(A), Article 14 (3) (a) ICCPR and Article 67 (1) (a) ICC all guarantee the right of an accused to be provided with reasonably sufficient information of a specific crime with which he is charged detailing the nature and content of the charge in order to give the accused notice of the matter with which he is charged. It is respectfully submitted that for the following reasons, the Prosecution’s proposed charging document is in direct violation of this fundamental guarantee and hence the Petitioner is liable to be discharged.

i. Misleading factual basis
ii. Incorrect charging
iii. Duplicitous charging
iv. Cumulative charging
v. Uncertain scope

Each of the above reasons are dealt with in detail below.

35. That it is submitted that a charge is made up of both a legal and a factual component in order for an accused to have sufficient notice of the charges brought against him. This is consistent with section 16 (1) IC(T)A which provides that the charges sought by the Prosecution must contain the particulars and facts of an alleged offence as the crimes of which the accused person is charged in order to “give the accused person notice of the matter with which he is charged”.

36. In its proposed charging document, the Prosecution do not provide the factual basis of each charge within the count itself; instead relying on previous paragraphs of the proposed charging document. For example, Allegation No. 5 (in paragraph No.9 of the Formal Charge) seeks to charge the Accused-Petitioner with deportation as a crime against humanity, relying on the facts mentioned in paragraph 8.6.

37. However, in several instances, the Prosecution refers to paragraphs that are of no relevance to the facts relied upon in the charge. For example, in Allegation No. 1 (in paragraph No.9 of the Formal Charge) the Prosecution seek to charge the Accused-Petitioner with conspiracy to genocide by “giving inciting, revengeful, hateful speech”, relying on paragraphs 8.8, 8.9, 8.13, 8.14, 8.15, 8.17.1, 8.17.2, 8.17.3 of the proposed charging document. However, paragraphs 8.15 and 8.17.1 refer to the alleged military training allegedly organised by the Accused-Petitioner on 16 May 1971. Paragraphs 8.17.2 and 8.17.3 detail events of alleged torture by the Accused-Petitioner. In sum, paragraphs 8.15, 8.17.1, 8.17.2 and 8.17.3 do not mention any reference to hate speeches as described by the Prosecution in Allegation No. 1 (in paragraph No.9 of the Formal Charge).

38. Furthermore, in Allegation No. 4 (in paragraph No.9 of the Formal Charge), the Prosecution seek to charge the Accused-Petitioner with extermination as a crime against humanity relying on events described in paragraph 8.9 which states:

“It is mentioned in a report of the Daily Sangram dated 16th August, 1971 that on 25th Azadi day (Freedom Day) a symposium and procession was arranged by Al Badr force. This symposium arranged at the local Muslim Institute was chaired by the chief organizer of Al Badr force Mr. Kamaruzzaman. It is known from a cable that in the symposium the speakers gave warning about the enemies who were trying to destroy the country. That symposium of Kamaruzzaman and his procession and hate speech created fear among the mass people and his speech and his instruction persuade his party workers to finish off the pro liberation innocent Bengalis”.

39. As detailed below, extermination involves the mass murder of a population. In paragraph 8.9 of the proposed charging document, there is no mention of any killing or murder let alone on a mass scale. Indeed paragraph 8.9 of the proposed charging document only details the alleged mass fear invoked in followers.

40. Pursuant to the purpose of section 16 IC(T)A and Rule 20 (1) of the Rules of Procedure, it must be identifiable to the accused as to which legal charge is brought against him under the jurisdiction of the Tribunal listed in section 3 (2) IC(T)A. It is respectfully submitted that the Prosecution have failed to do so in its proposed charging document.

41. For example, in Allegation No. 1 (in paragraph No.9 of the Formnal Charge) the Prosecution seeks to charge conspiracy to commit genocide. However, it has sought to do so pursuant to section 3 (2) (a) IC(T)A (crimes against humanity) and not section 3 (2) (c) IC(T)A (genocide).

42. Furthermore, in Allegation No. 4 (in paragraph No.9 of the Formal Charge) the Prosecution seeks to charge extermination as a crime against humanity but has failed to indicate under which section it seeks to charge this with, only referencing section 3 (2) IC(T)A in general. In light of the incorrect charging mentioned in paragraph 26 above, it is important for the Prosecution to be thorough and targeted in this regard in order to avoid any confusion as to the nature of the charge being sought.

43. In its proposed charging document the Prosecution has attempted to charge several offences within one charge and failed to distinguish between different types of crimes against humanity. For example, in Allegation 6 (in paragraph No.9 of the Formal Charge) the Prosecution seeks to charge the Accused-Petitioner with torture as a crime against humanity under section 3 (2) (a) IC(T)A. However, the charge details events of torturing and persecution. Similarity in Allegation No. 7 (in paragraph No.9 of the Formal Charge), the Prosecution seeks to charge the Accused-Petitioner with rape as a crime against humanity, but details events of rape and killings.

44. In Prosecutor v. Jean-Pierre Bemba Gombo (ICC-01/05-01/08 Decision Pursuant to Article 67 (1) (a) and (b) Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, paras 205 and 312), the ICC Pre-Trial Chamber failed to confirm charges of torture and inhumane acts when used in conjunction with the charge of rape with respect to the same act.

45. It is respectfully submitted that this method of charging is a form of duplicitous charging which is prejudicial to the Accused-Petitioner as it fails to differentiate between separate offences within one charge. The end result is that any conviction or acquittal of an offence within a multi-offence count will not be recognized which is particularly important at the sentencing stage.

46. In Allegation No. 2 (in paragraph No.9 of the Formal Charge), the Prosecution seeks to charge genocide pursuant to section 3 (2) (c) (iii) IC(T)A. It refers to the liability of the Accused-Petitioner for “committing genocide by killing only males and by raping females”. Furthermore, it relies on paragraph 8.7 for this factual basis for the commission of this allegation.

47. In Allegation No. 7 (in paragraph No.9 of the Formal Charge), the Prosecution seeks to charge rape as a crime against humanity pursuant to section 3 (2) (a) IC(T)A. It refers to the liability of the Accused-Petitioner for crime against humanity “by killing males and raping females”. It also relies on paragraph 8.7 for the factual basis for the commission of this offence.

48. It is respectfully submitted that there is no substantial difference in the conduct being charged in both counts, as referenced in paragraph 8.7. This is therefore a form of cumulative charging which is prejudicial to the defence of an accused.

49. The Defence reiterates the importance of having a specific charging document which details the nature and cause of the charges brought against an accused. In Allegation No. 9 (in paragraph No.9 of the Formal Charge), the Prosecution seeks to charge the Accused-Petitioner with “liability for all crimes”. This is exceedingly broad and scope and defeats the object and purpose of any charging document.

50. Additionally, it is unclear as to how the Prosecution seeks to charge the events listed in paragraph No. 11 which detail: the alleged superior status of the Accused-petitioner, the conspiracy in criminal activities, the planning of criminal organisation, incitement, and complicity. Unlike previous allegations, these are not subtitled as separate allegations. Furthermore, in Allegation Nos. 1 to 8, the Prosecution has already detailed the modes of liability of the Accused-Petitioner, citing reference to either section 3 (2) (g), 3 (2) (h), 4 (1) or 4 (2). To add further confusion to the matter, the Prosecution has also detailed events of murder and torture in Paragraph No. 11 despite seeking to charge these crimes in Allegation Nos. 3 and 6 respectively.

51. Furthermore, there is a recognised bar to convicting an accused for both his direct responsibility in the commission of a crime and his responsibility as a result of his superior responsibility. This was most recently upheld by the ICTY Trial Chamber in Prosecutor v Dordevic:

“Where both Article 7(1) [planning, instigation, ordering and commission] and Article 7(3) [command responsibility] responsibility are alleged under the same count, and where the legal requirements pertaining to both of these heads of responsibility are met, a Trial Chamber should enter a conviction on the basis of Article 7(1) only, and consider the accused’s superior position as an aggravating factor in sentencing” (IT-05-87/1-T, Judgment, 23 February 2011, para. 1891).

52. It is submitted that the matters detailed in paragraph No. 11 are prejudicial to the Accused-Petitioner, as the Prosecution has failed to differentiate between the alternative modes of culpability. The end result is that an accused can be convicted twice for identical conduct amounting to unfairly cumulative convictions and subsequent sentences.

53. For the abovementioned reasons it is submitted that the Prosecution has failed to produce a comprehensive and comprehendible proposed charging document which adequately notifies the Accused-Petitioner of the charges brought against him. For these reasons, the Accused-Petitioner prays that the Hon’ble Tribunal does not frame charges in relation to Allegation Nos. 1, 2, 4, 6, 7, 9 (in paragraph No.9) or in paragraph No. 11.

54. The Tribunal will recall the principle of nullum crimen sine lege 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”.

55. For this reason, proceedings brought against the Accused-Petitioner must be guided by definitions of crimes under international customary law as it stood in 1971, at the time of the alleged commission of crimes. Definitions of crimes are fundamental to adversarial proceedings and without which, neither the Prosecution, Defence or Tribunal can be sure as to which threshold must be passed in order to secure either an acquittal or conviction.

56. In Allegation No.2 the Prosecution seek to charge the Accused-Petitioner with genocide which is a crime under section (3) (2) (c) IC(T)A. The charge details that:  “The accused was the chairman of Mymensingh district Islami Chhatro Shongho on 1971 since Al Badr is a paramilitary force whose chief organizer was the accused then he has the superior/commander status. Since, the accused is a high ranking commander he is liable for the crimes committed by all his subordinate workers under the section 4(1); 4(2) and for committing genocide by inflicting serious physical injuries, taking preparation for genocide, organizing the killing squad of Al Badr force and recruiting and providing military training to the workers of Islami Chhatro Shongho.

In paragraph 8.7 he is liable for committing genocide by killing only males and by raping females (emphasis added)”.

57. Paragraph 8.7 of the proposed charging document provides:  “According to the plan and advice of the accused Kamaruzzman on 25th July 1971 Pakistani army, Rajakar and Al Badr surrounded the Shohagpur village and killed all men and raped all young women (from that day the village is known everywhere as the village of the widows). Around 120 men were killed at Shohagpur village. The survivors arranged the burial of the killed people. Pakistani army, Rajakar and Al Badr committed this mass killing according to the plan of the accused Kamaruzzaman…”

58. Genocide is a crime under section 3 (2) (c) IC(T)A which specifically provides that genocidal acts can only be proven if they have been “committed with intent to destroy, in whole or in part, a national, ethnic, racial, religious or political group (emphasis added)”. It is respectfully submitted that the Prosecution has failed to determine the specific group allegedly targeted by the Accused-Petitioner. In particular, it is submitted that there is no mention of genocide being committed on a gender basis under section 3 (2) (c) IC(T)A and as a result the requisite intent has not been established in Allegation No. 2.

59. That as abovementioned, in Allegation No. 4 the Prosecution seeks to charge the Accused-Petitioner with extermination as a crime against humanity. Unlike the above submission in paragraph 44, extermination is listed as a crime against humanity under section 3 (2) (a) IC(T)A. In the absence of a definition of extermination in the Act, it is in the interest of justice to refer to the jurisprudence of ad hoc international and hybrid tribunals. Indeed, the Tribunal will recall that in its order dated 3 October 2011 in ICT BD Misc. Case No. 01 of 2011 in the matter of Delewar Hossain Sayedee, it stated that: “the Tribunal may take into account jurisprudential developments from other jurisdictions should it feel so required in the interests of justice”. It further emphasized that “the Tribunal may take into account normative developments should it feel so required in the interests of justice”. This order was made in relation to the alleged charges against Delewar Hossain Sayedee.

60. The ECCC Trial Chamber has determined that under customary international law in 1971, extermination was defined as: “Extermination, whose customary status is also undisputed, is characterized by an act, omission or combination of each that results in the death of persons on a massive scale. 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.” (footnotes omitted)”. (Prosecutor v. Kaing Guec Eav (Duch), No. 001-18-07-2007/ECCC/TC, Trial Chamber Judgment, 26 July 2010, paras 334-338)

61. Therefore for an accused to be liable of extermination as a crime against humanity there must be killing on a massive scale. It is respectfully submitted that the Prosecution has failed to establish that many deaths let alone mass killings occurred in Allegation Nos. 4 and its adjoining factual basis in paragraph 8.9 of the proposed indictment.

62. In Allegation No. 5 (in paragraph No.9 of the Formal Charge) the Prosecution seeks to charge the Accused-Petitioner with deportation as a crime against humanity pursuant to section 3 (2) (a) IC(T)A. in customary international law, deportation refers to the forced displacement of persons by expulsion or other coercive acts form the area in which they were lawfully present (see Prosecutor v. Stakic, IT-97-24-A, Appeals Judgment, 22 March 2006, 278 and Article 7 (2) (d) ICC). The jurisprudence of the ad hoc international tribunals and ICC, emphasise the fact that deportation must be forced in order to constitute a crime against humanity (see Prosecutor v. Kristic, IT-98-33-T, Trial Judgment, 2 August 2001, para. 528; Prosecutor v. Krnojelac, IT97-25-T, Trial Judgment, 15 March 2002, para. 475; Article 7 (2) (d) ICC). Therefore, if an individual or group flees of his or her own genuine volition, this cannot be deemed to be forced displacement (Jean Pictet, Commentary on Geneva Convention IV (ICRC, Geneva, 1960) p.279).

63. In Allegation No. 5 (in paragraph No.9 of the Formal Charge) and paragraph 8.6, the Prosecution describes that on the 1 June 1971 Emadadul Huq Hira and family left the family home to move elsewhere and that “later with the help of Kamaruzzaman, Pakistani army settled camp at the residence of Emdadul Huq Hira”.

64. It is respectfully submitted that the Prosecution has failed to establish that the alleged victim was forced to flee his home as a direct result of the Accused-Petitioner’s alleged conduct. It may be that Emadadul Huq Hira and family left the family home as a result of the 1971 conflict but this would have been by their own genuine volition so as not to amount to deportation as defined in international customary law.

65. In Allegation No. 6 (in paragraph No.9 of the Formal Charge) the Prosecution seek to charge the Accused-Petitioner with direct participation in the commission of torture as a crime against humanity pursuant to section 3 (2) IC(T)A. In the absence of any contextual elements in the Act itself, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment can be of assistance (hereinafter: Torture Convention). Article 1 of the Torture Convention defines torture as:  “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions”.

66. It is therefore submitted that the definition of torture in international customary law includes a purpose requirement. However, in Allegation No. 6 the Prosecution has failed to establish that the alleged acts of torture were made in pursuant of any purpose including inter alia, to obtain confession, information or punishment. 
67. Under section 3 (2) (a) IC(T)A, the crime of persecution is described as a crime of discrimination, which requires an identifiable and targeted group based upon “political, racial, ethnic or religious grounds”. This is based on Article 6 (c) of the Charter of the International Military Tribunal which includes persecution as a crime against humanity on “political, racial or religious grounds”. This is also established in the ICC’s Elements of Crimes, Crimes Against Humanity, Article 7 1 (h) paras 2 & 3:

“2. The perpetrator targeted such person or persons by reason of identity of a group or collectively or targeted the group or collectivity as such. 3. such targeting was based on political, racial, national, ethnic, cultural, religious, gender as defined in article 7, paragraph 3, of the Statute, or other grounds that are universally recognize as impermissible under international law”.

68. In Allegation No.8 the Prosecution seeks to charge the Accused-Petitioner with persecution as a crime against humanity. However, it is respectfully submitted that the Prosecution has failed to establish on which discriminatory basis the alleged victim, Emdadul Huq Hira was targeted.

69. For the reasons abovementioned, it is respectfully submitted that Allegation Nos. 2, 3, 4, 5, 6 and 8 are not framed in the current form as they do not clarify the necessary parameters for the commission of offences amounting to genocide or crimes against humanity.

70. That moreover, the amendments made by the International Crimes (Tribunals) (Amendment) Act, 2009 to section 3(1) of the IC(T)A have not been given retrospective effect. As such the amendments are only effective and in force from the date of promulgation of the International Crimes (Tribunals) (Amendment) Act, 2009 (i.e. 14 July 2009). As such the amended provisions of the IC(T)A do not apply to the Petitioner.
 After the reading out was completed, Justice Nizamul Haq then set 10 April 2012 for further defence arguments.  The court then moved onto the case of Quader Molla (see this page).



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