15 Apr 2012: Nizami charge framing response 1

In the afternoon, following the appellations made by Salauddin Quader Chowdhury's lawyers, the defence counsel read out the written application seeking dismissal of the charges against Nizami. This follows on from the charge framing application submitted by the prosecution.

The written application is set out below. It is divided into:
- introduction (1-9)
- history of Jamaat (10-42)
- requirements of framing charges (43-49)
- challenges to the charges (para 50-83)
- particulars of crime (50-56)
- unspecified crimes (57-64)
- Lack of criminal element (para 65-71)
- Mode of liability (72-76)
- Contextual Elements: genocide (77-83)

Subsequent hearings relating to the application can be found here and here

Introduction 

1. It is recalled that on 9 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 by 15th January 2012. The Prosecution did comply with this order and the Defence did receive 15 volumes of prosecution document along with a list of witnesses in support of the Prosecution’s case against the Accused-Petitioner. 

3. The proposed indictment in its final form charges the Accused-Petitioner with 15 counts of crimes against humanity and 4 counts of genocide. In total there are 15 charges against the Accused-Petitioner.  

4. That the petitioner was born in a noble family of Pabna District on 31st March 1943. That Mawlana Nizami completed his primary education at his native village and then he studied in ‘Boailmari Madrasah’ at Santhia. He was a meritorious student all along. He passed ‘Dakhil’ Examination with first class in 1955. Afterwards the petitioner stood sixteenth at the ‘Alim’ Examination from the then East Pakistan Madrasah Education Board in 1959. Then the petitioner passed ‘Fazil’ Examination with first class in 1961. He obtained ‘Kamil’ (M A) in Fiqh (Islamic Law) degree with first Class from Madrasah-e-Alia, Dhaka in 1963 where he secured the second place in the Education Board. In addition, the pettioner also graduated from Dhaka University in 1967.  

5. That the petitioner started his career as a research fellow at Islamic Research Academy in Dhaka in 1971. Before starting a career of full time Da’yee (Islamic Preacher), he was also involved in journalism and translation works for a few years. 

6. That the petitioner joined Jamaat after completion of his student life. He served as the Ameer of Dhaka City Unit as well as a member of Central Executive Committee from 1978 to 1982. That the petitioner also served as Assistant Secretary General of Jamaat from 1983 to December 1988. In December 1988 the applicant became the Secretary General of the organization. Prior to his election as the Ameer of Jamaat, he held the position of Secretary General till 2000. That the applicant elected as Ameer (President) on 2000 and still he is in that post.  

7. That the applicant in 2009, Mawlana Motiur Rahman Nizami was named as one of the top 50 ‘Most Influential Muslims’ by USA based prestigious “the Royal Islamic Strategic Studies Centre”. He is the elected Ameer (chief) of Bangladesh Jamaat-e-Islami (Jamaat), the largest Islamic organization of Bangladesh, for the session of 2010-2012. He was also elected as Ameer for the consecutive sessions of 2001-2003, 2004-2006 and 2007-2009. The applicant is held in high esteem by the people of the country as a prominent Islamic thinker, ideal organizer, dynamic & diligent political leader, orator par excellence, research scholar, parliamentarian, writer and uncompromising pioneer of struggles in the cause of Allah. Bangladesh Jamaat-e-Islami led by Mawlana Motiur Rahman Nizami is the biggest & most popular Islamic movement in Bangladesh and the third largest political party of the country.  

8. That the applicant is a staunch advocate for democracy. In the past he actively participated in all political and democratic movements which included anti-Ayub Movement in the sixties, mass movement of 1969 and mass movement against autocratic government in 1990 and movement for holding election under Caretaker Government from 1994 to 1996. He is still playing significant roles for strengthening the democratic process in the country.  

9. That the petitioner was elected as Member of the National Parliament from his birth place Santhia-Bera constituency of Pabna, Bangladesh Constituency No. 69, in the parliamentary election held in 1991. He played a vital role as Jamaat's Parliamentary Party leader in the fifth ‘Jatiya Sangsad’ (National Assembly) from 1991 till 28th December, 1994. By virtue of his popular dynamic leadership quality and significant development works, he was elected again as the Member of Parliament for the second time from the same constituency in the October 2001 election. The applicant sworn in as the Minister for Agriculture of the People’s Republic of Bangladesh (2001-2003) on 10th October 2001 and thereafter He was entrusted with the Minister of Industrial Affairs (2003- 2006) as on 25th May 2003.  

Brief History of Jamaat-e-Islami10. The Jamaat was formed in August 1941 in a convention called at Lahore by Maulana Syed Abul A’la Maududi, a renowned Islamic thinker. It was attended by 75 well-read ulama and modern educated persons from various parts of United India. They were morally and intellectually impressed by the monthly journal of Maulana Maududi, the Tarjumanul Quran. The Maulana explained before the Convention the soundest program as followed by the last Prophet of Islam (pbuh) for the Islamic movement. These are:
- Islam is a complete code of life.
- Those who are ready to accept this ideology must be organized and trained up according to that ideology.
- The people thus trained up should strive to change the un-Islamic leadership and to establish Islam in the society  

11. During the British period (1941-1947), Jamaat concentrated in the following activities:
- To organize Islamic research for producing necessary books in various aspects of Islam.
- To widely propagate the teachings of the Quran and the Sunnah and to diffuse basic Islamic knowledge with a view to removing intellectual slavery and stagnation.
- To organize the honest and sincere elements of the society and to train them properly so that integrity and efficiency are combined in the same character.  

12. The second phase of the Jamaat (1947-1962) started with partition of India when the Jamaat was also divided into Jamaat-e-Islami Pakistan and Jamaat-e-Islami Hind. The two organizations became separate both in form and character as the respective fields of work were different.  

13. After the establishment of Pakistan the Jamaat studied the policies of the then ruling party and realized that they were not in inclined to fulfill the promise of establishing an Islamic state. In this context, Jamaat submitted a four point demand to the government to declare the Islamic objectives of the state. It organized a movement to pressurise the Constituent Assembly to accept its demand. But unfortunately the party leaders including its Secretary General were arrested on account of their ‘audacity’ in placing such a demand. But all the Islamic forces of the country including some members of the Constituent Assembly of the ruling party recognized this demand of Jamaat-e-Islami, following which the movement gathered momentum. Ultimately, the Constituent Assembly adopted the ‘Objectives Resolution’ in terms of the demands made by Jamaat.  

14. Thereafter Jamaat chalked out a permanent and comprehensive four point program and continued its movement for an Islamic constitution as well as realization of the economic and democratic rights of the people.  

15. This phase of the activities of the Jamaat ended with the fall of democracy in October, 1958 when the Constitution of Pakistan was abrogated and Martial Law was imposed. The Jamaat was also banned by the then military rulers of Pakistan along with other political parties. The Martial Law continued till 1962. During this period the Jamaat performed the following activities:
a) To educate people in general and the intelligentsia in particular about an Islamic society.
b) To organize the masses under the leadership of trained people and to educate them properly about the practical benefits of Islamic society.
c) To employ the workers of the Jamaat to various social services.
d) To combat the undemocratic and un-Islamic forces and ideas by launching campaigns in political, social and cultural fields.
e) To give opinion from Islamic point of view on every issue in order to guide the people and to counsel the government.
f) To publish Islamic literatures on a large scale in all the national and regional languages of Pakistan and in some foreign languages, especially in Arabic and English.
g) To work intensively and extensively for creating conditions conducive to a truly Islamic and democratic constitution.  

16. The third phase of the activities of the Jamaat (1962-1971) included a movement for democracy. This phase started from July, 1962 when Jamaat was revived after the withdrawal of Martial Law.  

17. Before Martial Law the Jamaat did not feel the need for entering into any kind of political pact with secular forces. The Jamaat regards democracy as a prerequisite for an Islamic social order and in this context after July, 1962 the need for restoring democracy compelled the Jamaat to think in terms of combined efforts by the democratic forces inside parliament and outside of it. The efforts of the Jamaat remain instrumental in the formation of combined opposition parties (COP) with Awami League, Muslim League (council group), Pakistan Democratic Party, National Awami Paty, Nezame Islam party as components.  

18. The Martial Law government of Pakistan framed a constitution in 1962 which was both undemocratic and un-Islamic in nature and content. There was a wide spread demand for its rejection. But the Jamaat thought that amendment of the Constitution was the only course left open for democratization of this Constitution in order to avoid greater political crisis at that moment. It was successful in convincing other leaders of opposition parties and worked with them for restoration of democracy, reduction of regional disparity and provincial autonomy. The Jamaat also continued its own program for Islamization of politics and human resources development on the basis of the teachings of Quran and Sunnah as enunciated in its permanent program and party constitution. In January, 1964 the Government banned Jamaat on frivolous charges. However, this action of the government was declared illegal by the Dhaka High court in July and by the Supreme Court of Pakistan on 25th September, 1964.  

19. The dictatorial type of the government and restoration of democracy continued to be the main problem throughout the sixties and the Jamaat earnestly believed that without democracy and democratic institutions, Islamization of politics and political system, economics, banking and finance as well as other disciplines can never be achieved. Accordingly Jamaat placed greater emphasis on the movement for restoration of democracy, regional autonomy and equity in the dispensation of services. The party did not hesitate to join hands with other parties in its efforts to realize these objectives and launch a united movement.  

20. Jamaat-e-Islami played a very important role in the movement against the autocratic regime of Ayub Khan (1958-1969). On 20th July 1964, Combined Opposition Parties (COP) was formed comprising of 5 parties, namely Council Muslim League, Awami League, National Awami Party (NAP) Nizam-e-Islam, Jamaat-e-Islami, , which nominated Fatema Jinnah to contest the Presidential elections against Ayub Khan. It was decided that the executive responsibilities of COP would rotate between the 5 parties on a monthly basis. Between 1964 and 1965, COP organized various political programs and adopted numerous resolutions criticizing the autocratic Ayub regime and demanding restoration of democracy. COP was the first broad-based political platform against the autocratic regime of Ayub Khan.  

21. Following the 1965 Indo-Pak War, Opposition political parties, in order to provide the much needed impetus for democratic reforms, formed the Pakistan Democratic Movement (PDM). PDM comprised of Nizam-e-Islam, Council Muslim League, Pakistan Awami League (led by Nawabjada Nasrullah Khan), Jamaat-e-Islami, and Pakistan Democratic Party. East Pakistan Awami League led by Sheikh Mujibur Rahman refused to join PDM because of a difference of opinion among the political parties regarding its 6 point formula. Advocate Abdus Salam Khan was appointed PDM’s East Pakistan President.  

22. In 1969, PDM was expanded to form Democratic Action Committee (DAC) to strengthen the campaign for democracy. DAC comprised of 8 Opposition political parties, being Council Muslim League, Nizam-e-Islam, Pakistan Awami League (pro- PDM), Jamaat-e-Islami, Pakistan National Awami Party, Jamiat-e-Ulama Islam and East Pakistan Awami League (6 point formula). In January 1969, Ayub Khan invited DAC to a Round Table Conference to discuss the mechanism for restoration of democracy. Each party nominated two representatives to attend the Conference. Eventually, following a mass movement, Ayub Khan, on 24th March 1969 resigned as President of Pakistan.  

23. A parliamentary election was held in 1970 under General Yahya Khan’s military rule. The Awami League led by Sheikh Mujibur Rahman won 167 seats in the National Assembly. The Jamaat won 5 seats in West Pakistan but none in the East Pakistan, but still occupied second position in every seat it contested. The Petitioner’s party was however able to win one seat in Bogra in the Provincial elections in 1970.
24. After the election was over, as a matter of political courtesy, Jamaat congratulated Awami League and its leaders for winning the elections. Not only that, when a political and constitutional crisis arose after the postponement of the session of the National Assembly, which was due to take place on 1st March 1971, the Petitioner on 17th March 1971 urged upon the President of Pakistan to transfer power to the majority party, pending framing of the Constitution. However, the government refused to do so. Consequently, armed struggle followed with Indian assistance which subsequently culminated into war. Bangladesh emerged as a separate country in December 1971. The elected representatives of the winning party Awami League belonging both to the national and provincial assembly left for India for refuge. The leaders of the Jamaat and other Islamic and right leaning political parties could not go there for obvious reasons. They stayed in the country, tried their best to save the people from the oppression of the army.  

25. During the Liberation War in 1971, on many occasions, the Petitioner strongly criticized the Pakistan Army for their attacks against the Bengali; however the said speeches were never reported in the newspapers because of the censorship regulations which were then in force.  

26. When the country was liberated, Jamaat had to face a great calamity. The victorious members of Awami Leagu murdered thousands of Jamaat members, workers and supporters along with other helpless people belonging to their rival political parties.  

27. That no proceedings have ever been instituted against the Petitioner in the last 40 years. With the repeal of the Collaborators’ Order, the notice issued under that Order died its natural death. Neither FIR nor any petition has ever been filed against him in any police station or court of law in Bangladesh.  

28. The Constitution as adopted by the government of Bangladesh in 1972 prohibited formation of political parties based on Islamic ideologies and as a result Jamaat could not work openly and legally. However, following a change of government in 1975, the Constitution was amended allowing functioning of religious political parties. In May, 1979 the Jamaat decided to work publicly. It participated in the national election in 1979 in the name of Islamic Democratic League (IDL) and won 6 seats. The Jamaat contested in election in 1986 for the first time in Bangladesh in its own name and gained 10 seats, thereby qualifying itself as a parliamentary party. Thus the Jamaat got legal recognition as a political party. 

29. Following the assassination of President Ziaur Rahman on 30th May 1981, Mr. Justice Abdus Sattar was elected as President in elections held in November 1981. However, within a few months of assuming office, Mr. Justice Abdus Sattar was compelled to hand over power to the Chief of Army, Lieutenant General Hussain Mohammad Ershad. On 24th March 1982, Ershad declared Martial Law and suspended the Constitution. Jamaat-e-Islami played a vital role in the campaign against the autocratic regime of Ershad and in the movement for restoration of democracy. On 20th November 1983, Abbas Ali Khan, the then Acting Ameer of Jamaat-e-Islami declared the Ershad government to be illegal and demanded the holding of elections under a neutral administration led by the Chief Justice. Thereafter, Jamaat-e-Islami formed a 5-member liaison Committee for communication with the Opposition political parties to ensure a coordinated movement against Ershad’s autocratic regime. For a period of 7 years, between 1983 and 1990, Jamaat-e-Islami fought side by side with the two Alliances led by the two major political parties, namely the Awami League and the Bangladesh Nationalist Party, for restoration of democracy. During this period, innumerable meetings were held in which the then Awami League leadership, Sheikh Hasina, Tofail Ahmed, Abdus Samad Azad, Amir Hossain Amu and others engaged in discussions with Motiur Rahman Nizami, Ali Ahsan Md. Mujahid, Kamruzzaman and Quader Mollah. As a result of the intense movement led by the Opposition political parties, including Jamaat-e-Islami, on 6th December 1990, Ershad was forced to resign leading to holding of elections under a neutral Caretaker administration.  

30. It is an historical truth that Jamaat-e-Islami was the first political party which floated the idea of holding elections under a caretaker government.  

31. Following the fall of Ershad, elections under the Caretaker Government of Justice Shahabuddin Ahmed took place in 1991 which resulted in a hung Parliament. With 18 seats, Jamaat-e-Islami was holding the balance of power. Both the major political parties, namely the Awami League and the Bangladesh Nationalist Party sought the assistance of Jamaat-e-Islami to form government. A very influential member of the then Presidium of Awami League (now a member of the Advisory Council) came to see Mr. Ali Ahsan Md. Mujahid, who was then the chief of Jamaat’s liaison committee and sought Jamaat’s support to form the government in exchange for 3 ministerial positions and half a dozen reserved seats for women. On the other hand, the Bangladesh Nationalist Party (BNP) also offered ministerial posts to Jamaat. After long deliberations, the Majlish-e-Shura of Jamaat refused to accept the offer of Awami League and instead decided to support BNP to form the government. At that time, as a matter of principle, Jamaat decided not to participate in the government, although they did accept 2 reserved seats for women in Parliament.
32. In October 1991, former Chief Justice, Mr. Justice Badrul Haider Chowdhury met Professor Ghulam Azam, the then Ameer of Bangladesh Jamaat-e-Islami and sought the support of his party’s Members of Parliament for election as President, which has been reported in the Daily Inqilab dated 5th October 1991. However, Jamaat-e-Islami decided to give its support to Abdur Rahman Biswas, who later became President of Bangladesh.
33. Following the controversial Magura by-elections in 1994, Jamaat-e-Islami fought side by side with the Awami League and the Jatiyo Party for amendment of the Constitution to incorporate provisions for holding elections under a neutral Caretaker administration. Reports of the meetings of the top leadership of Awami League, Jamaat-e-Islami and Jatiyo Party were widely publicized in a number of daily newspapers.  

34. In the general election of 1996 the Jamaat won only 3 seats. It joined the four party alliance in 1999 with BNP and two other Islamic parties, contested in 31 seats in 2001 and won 17 seats. According to pre-election declaration of the alliance the Jamaat agreed to accept two ministries. It nominated its Ameer Maulana Matiur Rahman Nizami and Secretary General Ali Ahsan Muhammad Mujahid to become ministers. As ministers both of them proved their skill, ability, honesty and integrity.  

35. The Jamaat is not only a political party, but it is a social movement as well. The Jamaat has various side organizations working in the field of labour, farmers, education etc. They are: 1. Bangladesh Labour Welfare Federation 2. Bangladesh Cultivators Welfare Association  3. Bangladesh Masjid Mission 

36. Some of the institutions established by the Jamaat are as follows: 1. Bangladesh Islamic Institute  2. Syed Abul A’la Maududi Research Academy 3. Bangladesh Islamic Center  4. Islamic Education Society 5. Islamic Economics Research Bureau 6. Falah-e-Aam Trust 7. Darul Arabia and Darul Iftah 8. Adhunik Prakashani 9. Ideal Teachers Council
All these institutions maintain the principle of transparency and accountability.  

37. From the statements made hereinabove, it is clear that Jamaat is a democratic political party. Jamaat’s vision is to establish a democratic and pluralistic society and it denies the allegations in the Formal Charge that it believes in compelling people to accept Islam. In fact, Jamaat considers it to be a social and religious obligation to establish communal harmony. It is an indisputable fact that Jamaat has a large number of non-Muslim members and supporters.  

38. Meanwhile the nationalist BNP and the Jamaat formed an alliance with other two parties and won the election. The Awami League and its allies evaluated the situation and came to the conclusion that it was the Islamist forces, particularly the well-disciplined Jamaat which was the main factor behind their defeat and as such made all out efforts to isolate Jamaat from BNP and the four party alliance but failed. It also tried to bifurcate the Jamaat through creating internal feuds but could not be successful. When all their efforts failed they clamped down on the Jamaat by raising the false issue of war crimes against the top Jamaat leadership. When they found it difficult to try Jamaat leaders under the 1973 Act, they made suitable amendments in 2009.  

39. The ruling party is determined to destroy the Jamaat. Immediately after coming to power in January 2009, it hatched a conspiracy 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.  

40. 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.  

41. 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”.  

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

Requirements of framing of charges 43. 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.  

44. 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”.  

45. 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.  

46. 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)”.  

47. 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”.  

48. 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.).  

49. 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.  

Challenges to the indictment a) Particulars of crime
50. As abovementioned, section 16 (1) IC(T)A provides that 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”.  

51. It is therefore submitted that in order to determine whether the facts accord with the crime or the form of participation charged, further information as to which particular offence is being alleged must be provided for by the Prosecution. This is particularly important in light of the fact that the alleged events occurred forty years ago.  

52. Each of the 15 charges against the Accused-Petitioner includes a charge for the commission of crimes against humanity. However, throughout its proposed indictment, the Prosecution has failed to specify which crime (singular) as a crime against humanity has been committed. For example in Charge 1, no commission of crime has been detailed and the Prosecution only name check section 3 (2) (a) IC(T)A at the end of the charge. In doing so, the Accused-Petitioner has not been given sufficient notice as to which criminal offence he is alleged to have been involved in.  

53. This becomes a further difficulty in Charges 7 and 8 whereby the Prosecution describe acts of arson, looting and property damage alongside acts of murder. It is submitted that section 3 (2) (a) IC(T)A omits any reference to such acts. It may be that the Prosecution intend to categorise arson, looting and vandalizing as “other inhumane acts” which is listed in section 3 (2) (a) IC(T)A. However, to do so would, respectfully, be incorrect. The elements of ‘other inhumane acts’ are detailed in the ICC’s ‘Elements of Crimes, Crimes Against Humanity, Article 7 (1) (k)’ which states that in order for a crime to constitute an inhumane act the perpetrator must have “inflicted great suffering, or serious injury to body or to mental or physical health, by means of an inhumane act” (para. 2). The Prosecution has merely stated that looting and vandalism has occurred and has not established the gravity of such acts to fall within the scope of ‘other inhumane acts’. They have omitted to provide any description of what was looted, vandalized or destroyed by arson.  

54. Furthermore, should the Prosecution intend for arson, looting and vandalism to be classified as persecution, which is listed in section 3 (2) (a), then an identifiable group needs to be established. Persecution is a crime of discrimination, intended to target a group as provided for in section 3 (2) (a). 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”.
The Prosecution has given no indication as to which groups were targeted by the alleged acts of looting and vandalism.  

55. It is further submitted that this lack of specificity is also problematic in Charge 12 in relation to the movements of Anil Chandra Kunda. The charge omits any mention as to which crime against humanity under section 3 (2) (a) IC(T)A this act constitutes and as a result it can only be assumed that it is the alleged offence of deportation. However, the charge also describes that Anil Chandra Kunda voluntarily moved to India when the Liberation War commenced. There is no suggestion that he initially moved as a direct result of the Accused-Petitioner’s alleged actions. It may be the case that the victim could not return to his home, but under the customary international definition of deportation, this would not satisfy the crime. In the absence of any elements of crimes within the Act, one can turn to the ICC’s “Elements of Crimes, Article 7” in which deportation is defined. Paragraph 2 of Article 7 (1) (d) of the ICC’s “Elements of Crimes states that in order for the crime of deportation to be satisfied, the victim must have been “lawfully present in the area from which they were so deported or transferred”. From the description provided for in Charge 12, Anil Chandra Kunda was not present, legally or otherwise, in Sathiba, Pabna at the time of his property being destroyed.  

56. It is respectfully submitted that the purpose of providing such a detailed list of acts constituting crimes against humanity within section 3 (2) (a) IC(T)A, is to provide sufficient specificity and understanding pursuant to section 16 (1) IC(T)A. For the abovementioned reasons, it is submitted that the Prosecution has failed to do this and as a result the Accused-Petitioner prays that all 15 charges are not framed against him.  

b) Unspecified crimes 57. 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 charge . 

58. It is respectfully submitted that the Prosecution have failed to clarify the specific charges against the Accused-Petitioner. In Charges 1, 2, 3, 4 , 9, 10, 11, 12, 13, 14 and 15 the Prosecution state that a crime has been committed crimes according to section 3(2)(a)(g) IC(T)A.  

59. The Defence notes that no such sections exist within IC(T)A. There is a section 3 (2) (a) which refers to a crimes against humanity; a section 3 (2) (c) which refers to genocide and a section 3 (2) (g) which refers to “attempt, abetment or conspiracy to commit any such crimes”. At first instance, the Defence may assume that the Prosecution seeks to charge mode of liability for the commission of crimes against humanity. However, notwithstanding the fact that this is just an assumption by the Defence and not clearly indicated by the Prosecution, there are two further problematic issues.  

60. Firstly, if the assumption is correct, it does not account for Charges 5, 6, 7 and 8 whereby the Prosecution allege that the Accused-Petitioner “committed crimes according to section 3(2)(a)(c)(g) IC(T)A”. The Prosecution has failed to specify which crime is charged as according to the Act. If the assumption is correct then the Prosecution has charged the same facts as both genocide and crimes against humanity within the same charge. This is a form of duplicitous charging which is prejudicial to the Accused-Petitioner as it fails to differentiate between separate offences within one charge.  

61. Secondly, as previously mentioned, the Prosecution has referred to several offences within one charge and failed to distinguish between the different types of crimes within crimes against humanity. For example, Charge 6 details alleged acts of killing, rape, looting and arson. It is submitted that this is another form of prohibited duplicitous charging. The Prosecution has merely stated that these events collectively fall within section 3 (2) (a) IC(T)A but have not specified which crime from the exhaustive list provided within in section 3 (2) (a) they are charging.  

62. 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.  

63. As detailed above, duplicitous charging 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.  

64. For this reason, it is submitted that as they stand, the charges are unspecific and contrary to section 16 ICT(A) and Bangladesh’s obligations under Article 14 (3) (a) ICCPR. For this reason the Accused-Petitioner prays that all 15 charges should not be framed as they currently stand.  

c) Lack of criminal element 65. Section 3 (1) IC(T)A provides the Tribunal with jurisdiction to try the listed crimes under section 3 (2) IC(T)A, these include crimes against humanity, crimes against peace, genocide, war crimes and violation of any humanitarian rule applicable in armed conflict laid down in the Geneva Conventions of 1949.  

66. In Charges 1 to 4, the Prosecution seeks to charge the Accused-Petitioner with what they have termed as “hate speech”. Charges 1 to 4 encompass Islamic speeches made in August and September 1971. It is respectfully submitted the nature of these speeches in themselves do not constitute crimes.  

67. Under Article 19 (1) everyone has the “right to hold opinions without interference”. The Human Rights Committee has most recently discussed this right in its General Comment No. 34 in 2011. It states that this right is non-derogable and “binding on every State party as a whole” [para. 7]. Of particular notes it states:  “Paragraph 1 of article 19 requires protection of the right to hold opinions without interference. This is a right to which the Covenant permits no exception or restriction. Freedom of opinion extends to the right to change an opinion whenever and for whatever reason a person so freely chooses. No person may be subject to the impairment of any rights under the Covenant on the basis of his or her actual, perceived or supposed opinions. All forms of opinion are protected, including opinions of a political, scientific, historic, moral or religious nature. It is incompatible with paragraph 1 to criminalize the holding of an opinion. The harassment, intimidation or stigmatization of a person, including arrest, detention, trial or imprisonment for reasons of the opinions they may hold, constitutes a violation of article 19, paragraph 1.  10. Any form of effort to coerce the holding or not holding of any opinion is prohibited. Freedom to express one’s opinion necessarily includes freedom not to express one’s opinion” [paras 9 and 10]. 

68. It is therefore respectfully submitted that the speeches alone do not constitute criminal activity. The Prosecution attempt to charge these speeches as a crime against humanity under section 3 (2) (a) IC(T)A. However, it is noted that they have failed to establish that crimes against humanity actually occurred within the charge.  

69. Furthermore they have failed to establish any causal link between these speeches and the alleged commission of crimes against humanity. This is particular in light of the fact that the Prosecution alleges that such atrocities were committed throughout the Liberation War between March and December 1971. These speeches were made in late August and September 1971, some time after the alleged commission of crimes against humanity. It is therefore submitted that the Prosecution has failed to: (1) establish the existence of commission of crimes against humanity and (2) establish that these speeches had any direct effect on the alleged commission of any crime. This includes speeches made in the presence of the Accused-Petitioner as is the case in Charge 2.  

70. It is therefore submitted that the Prosecution has failed to establish any criminal element in Charges 1 to 4 and therefore it is respectfully submitted that the Tribunal lacks any jurisdiction over these charges and as such they should not be framed.  

d) Mode of liability 71. Following on from the above point, the Prosecution seek to frame Charges 1 to 4 under section 4 (2) IC(T)A which provides: “Any commander or superior officer who orders, permits or acquiesces or participates in the commission of any crimes specified in section 3 or is connected with any plans and activities involving the commission of such crimes or who fails or omits to discharge his duty to maintain discipline, or to control or supervise the actions of the persons under his command or his subordinates, whereby such persons or subordinates or any of them commit any such crimes, or who fails to take necessary measures to prevent the commission of such crimes, is guilty of such crimes”.  

72. This provision involves the culpability of a commander or individual in a superior position. In paragraph 33 of the proposed indictment, the Prosecution cites to the Accused-Petitioner’s position as leader of Islami Chhatro Shongho. Indeed the Prosecution, in Charges 1 to 4, establishes that the speeches in question were made in his role as leader of Islami Chhatro Shongho assumingly to members of the group. In paragraph 24 of the proposed indictment, the group is described as a student political group.  

73. However, it is submitted that the Prosecution has not established the direct perpetrators responsible for the commission of the alleged crimes in Charges 1 to 4 and as a result have failed to establish that the Accused-Petitioner had any effective control over the perpetrators of the crime.  

74. It is also submitted that in Charges 5, 8 and 10, the Prosecution has failed to establish the Accused-Petitioner’s actual involvement in the alleged commission of offences. All three counts are charged under section 3 (2) (g) IC(T)A. In Charge 5, the Prosecution explicitly states that the Pakistan Army is responsible for the commission of genocide. They fail to demonstrate any involvement on behalf of the Accused-Petitioner within this charge. Although the Prosecution attempts to link the Accused-Petitioner in paragraphs 24 to 30 of the proposed indictment, they have not explained or proven how the Accused-Petitioner is responsible for the alleged events in Charge 5. As it stands, only the Pakistani Army is culpable for the alleged commission of genocide and crimes against humanity.  

75. Similarly in Charge 8, the Prosecution alleges that followers of the Accused-Petitioner shot a number of individuals and looted and destroyed properties with the assistance of the Accused-Petitioner. It is not clear whether this assistance was in the form of a direct order or command as compared to Charge 9 which alleges that the Accused-Petitioner directed the torture of Mawana Kasimuddin Ahmed. In Charge 10, the Accused-Petitioner’s involvement in the alleged genocide is not apparent. There is no evidence that the Accused-Petitioner was even made aware of the commission of this offence.  

76. It is therefore respectfully submitted that these charges are unspecific and contrary to section 16 IC(T)A . For this reason the Accused-Petitioner prays that Charges 1, 2, 3, 4, 5, 8 and 10 should not be framed.  

e) Contextual Elements: genocide 77. In Charges 5, 7, and 8 the Prosecution seek to charge the Accused-Petitioner with genocide which is a crime under section (3) (2) (c) IC(T)A. This provision specifically states 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 establish the requisite intents in Charges 5, 7 and 8.  

78. Furthermore, it is submitted that a number of the alleged victims in 5, 7 and 8 are all named as freedom fighters. Although as abovementioned, the Prosecution has failed to specify which genocidal group the freedom fighters fall within, it can be assumed that they fall within the political group pursuant to section 3 (2) (c) IC(T)A.  

79. However, it is respectfully submitted that this definition of genocide did not exist in 1971 when the alleged genocide is said to have been committed. Furthermore, the inclusion of political groups has never been accepted as part of the definition of genocide in customary international law or statutes of ad hoc tribunals or the Rome Statute for the International Criminal Court. Article 2 of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide specifically omits to include political groups as a targeted group and provides: “In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group”.  

80. 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”.  

81. As the Act was formulated two years after the alleged commission of offence it must apply the definition of genocide as applicable in 1971. This would be the definition found in Article 2 of the 1948 Genocide Convention.  

82. For the reasons abovementioned, it is respectfully submitted that Charges 5, 7 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 

83. That for the abovementioned reasons in this application, the Accused-Petitioner humbly prays that this Hon’ble Tribunal issues an order directing for his discharge.