In the afternoon, following the bail hearing on Sayedee, the tribunal then heard the application for a review of the order of indictment/charge-framing relating to Nizami.
It relates to a review of the order which was issued on 28 May 2012
The written application is set out below:
The written application is set out below:
1. It is recalled that on 9 January 2012 this Tribunal took cognizance of offences under section 3(2), 4(1) and 4(2) of the International Crimes (Tribunal) Act 1973 as amended 2009 (hereinafter: ICTA) against the Accused-Petitioner, stating that the Prosecution had established a prima facie case as required under Rule 29(1) of Tribunal-1 Rules of Procedure (hereinafter: RoP).
2. Subsequently the Tribunal ordered the Prosecution to serve the relevant papers and documents under Rule 18(1) RoP in its case against the Accused-Petitioner by 15 January 2012 which was complied with by the Prosecution.
3. In response, the Defence filed its Application for Discharge on 11 February 2012. This was followed by submissions made by both parties during the formal charge hearings held on 13.03.12, 14.03.12, 15.03.12, 21.03.12, 15.04.12, 16.04.12 and 03.05.12.
4. On 28 May 2012, the Tribunal issued its Order on the framed charges against the Accused-Petitioner (hereinafter: 28 May 2012 Order). In doing so it framed a total of 16 charges against the Accused-Petitioner. A certified copy of the 28 May 2012 Order was issued on 30 May 2012.
5. It is recalled that pursuant to Rule 26(3) RoP a review of any of the Tribunal’s Orders either by the Tribunal’s own motion or on application of either party including the Order of framing charges is allowed. Pursuant to Rule 26(4) RoP an application for review must be filed within 7 days of the order under review.
6. For the following reasons, it is submitted that the Tribunal erred in its approach in framing the charges against the Accused-Petitioner in its 28 May 2012 Order. For this reason, the Accused-Petitioner prays for a review of the 28 May 2012 Order under Rule 26(3) RoP. This application is made within the specified time limit.
Modes of Liability
7. It is recalled that throughout all the Counts, 1 to 16, the Accused-Petitioner has been charged under section 4(1) and section 4(2) of the Act.
8. In addition to the modes of liability under sections 4(1) and 4(2) of the Act, the Accused-Petitioner has also been charged with “planning”, “commissioning”, “conspiring”, being “complicit” in the commission of crimes under section 3(2)(g) and section 3(2)(h) ICTA under Counts 2, 3, 4, 5, 7 and 15.
9. Equally, in Charges 11, 12, 13 and 14, he is additionally charged with “inciting” the commission of such crimes as specified in section 3(2)(f) ICTA”.
10. It is noted that these modes of liability are not charged in the alternative, but rather the Accused is alleged to have committed all forms of liability at any one time.
11. It is submitted that in charging the offence in this manner, the Tribunal has failed to establish the legal characterization of the offence, contrary to section 16(2) ICTA. Furthermore, it is highlighted that in charging several modes of liability in a single count defeats the strict right to adequate preparation of defence guaranteed in Article 14(3)(b) International Covenant on Civil and Political Rights (hereinafter: ICCPR) which is an important element of the guarantee of a fair trial and an emanation of the principle of equality of arms” [HRC,Smith v. Jamaica (282/88) para. 10.4].
12. The Defence is unable to prepare a cogent defence in support of the Accused-Petitioner as the threshold for each mode of liability is distinct from one another.
13. The standard legal burden, which the Prosecution bears in proving an accused participated in an offence, is that of “beyond reasonable doubt” pursuant to Rule 50 RoP.
14. In contrast, the threshold for superior responsibility differs significantly. In Prosecutor v Halilovic [ICTY Trial Judgment, para. 54] it was held, “Under Article 7(3) command responsibility is responsibility for an omission. The commander is responsible for the failure to perform an act required by international law. This omission is culpable because international law imposes an affirmative duty on superiors to prevent and punish crimes committed by their subordinates. Thus “for the acts of his subordinates” as generally referred to in the jurisprudence of the Tribunal does not mean that the commander shares the same responsibility as the subordinates who committed the crimes, but rather that because of the crimes committed by his subordinates, the commander should bear responsibility for his failure to act. The imposition of responsibility upon a commander for breach of his duty is to be weighed against the crimes of his subordinates; a commander is responsible not as though he had committed the crime himself, but his responsibility is considered in proportion to the gravity of the offences committed. The Trial Chamber considers that this is still in keeping with the logic of the weight which international humanitarian law places on protection values.” (emphasis added)
15. This interpretation of responsibility was upheld by the ICTY Trial Chamber in Prosecutor v Hadzihasanovic (para. 75): “The Chamber subscribes to the findings of the Halilovic Chamber. Since command responsibility under Article 7(3) of the Statute is the corollary of a commander’s obligation to act, that responsibility is responsibility for an omission to prevent or punish crimes committed by his subordinates. The responsibility is “sui generis”, distinct from that defined in Article 7(1) of the Statute.”
16. In contrast again, the threshold for complicity, which is recognised as an umbrella term for aiding and abetting (see Kai Ambos, ‘Article 25’ in O. Triffterer, Commentary, p. 756) has been recognised in international customary law as one of “substantial contribution”, in other words, the abetment must have substantially contributed to the commission of the offence. This is neatly provided for in the Prosecutor v Kvocka Appeals Judgment, whereby the ICTY Appeals Chamber stated that: “Whether an aider or abettor is held responsible for assisting an individual crime committed by a single perpetrator or for assisting in all the crimes committed by the plurality of persons involved in a joint criminal enterprise depends on the effect of the assistance and on the knowledge of the accused. The requirement that an aider or abettor must make a substantial contribution to the crime in order to be held responsible applies whether the accused is assisting in a crime committed by an individual or in crimes committed by a plurality of persons” (IT-98-30/1-A 28 February 2005, para. 90).
17. In contrast again, incitement, whether an act or an omission [Prosecutor v Blaskic Trial Judgment, para. 280; Proseccutor v Kordic and Cerkez Trial Judgment, para. 387], has been recognised as an offence in international customary law only in certain circumstances. It must be direct and explicit and commission of the crime by other persons must follow up. In other words, incitement is not punished per se, but only if it leads to the perpetration of a crime [Blaskic TJ, para. 278; Kordic TJ, para. 387]. Further, the requisite subjective element is as follows:
a. The accused “directly intended to provoke the commission of the crime” [Blaskic TJ, para. 278; Kordic TJ, para. 387]; or
b. The accused was at least aware of the likelihood that commission of the crime would be a consequence of his action; and
c. The accused must possess the mens rea concerning the crime he is instigating [Prosecutor v Kvocka TJ, para. 252; Prosecutor v Naletilic and Martinovic TJ, para. 60].
18. It is submitted that in addition to the requirement to establish the legal characterization of the offence under section 16(2) ICTA, 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]
19. It is for this reason that international jurisprudence strictly adheres to the need for specific modes of liability in each count. For example, most recently (albeit in relation to a summons of an arrest warrant which is indeed a threshold lower than the indictment stage) the ICC Pre-Trial Chamber in Prosecutor v. Ruto, Kosgey and Sang, held: “Although the Prosecutor may generally charge in the alternative, he should be consistent throughout his Application about the actual mode(s) of liability that he intends to present to the Chamber. Moreover, the possibility for the Prosecutor to charge in the alternative does not necessarily mean that the Chamber has to respond in the same manner. In particular, the Chamber is not persuaded that it is best practice to make simultaneous findings on modes of liability presented \ in the alternative. A person cannot be deemed concurrently as a principal and an accessory to the same crime. Thus, it is the Chamber's view that an initial decision has to be made on the basis of the material provided, as to whether there are reasonable grounds to believe that Ruto, Kosgey and Sang bear criminal responsibility for the crimes against humanity that occurred in the specific locations in the Republic of Kenya, as discussed in section II above, either as co-perpetrators, indirect coperpetrators, or any other form of liability presented or that the Chamber finds appropriate.” (emphasis added) [ICC-01-/09-01/11, Decision on the Prosecutor's Application for Summons to Appear for William, Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, 8 March at para. 36]
20. For this reason, it is submitted that Counts 1 to 16 cannot be framed against the Accused-Petitioner in their current form.
21. Firstly, in furtherance of the above submission, it is recalled that in Charge 9 the Prosecution is charging 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.
22. Secondly, in Charges 1 to 5 and 7 the Prosecution has referred to several crimes against humanity within one charge and failed to distinguish between these. For example, Charge 2 details alleged acts of murder, rape and deportation. It is submitted that this is another form of prohibited duplicitous charging.
23. Thirdly, Charges 2 and 4 are composed of distinct offences and should be separated.
a. In paragraph 1 of Charge 2 the Accused-Petitioner has been charged with the killing of 450 civilians, 49 of whom are named, from the village of Baousgari, Ruposhi and Demra. In paragraph 2 of Charge 2, the Accused-Petitioner is charged with the rape of “about 30-40 women”, many of whom “were forced to leave the country”.
b. Similarly, in Charge 4, the Accused-Petitioner has been charged with the killing of Habibur Rahman on or about 24/25 April 1971; the killing of ten persons from the village of Karamja on the 8 May 1971; the rape of “Shebani, the daughter of Megha Thakur, son’s wife and two other Muslim women”; the looting of belongings of Megha Thakur and destruction of the house of Wahed Pramanik.
24. It is submitted that the alleged killing of 450 civilians is a distinct offence from the alleged rape of 30-40 women and therefore Charge 2 contains two separate incidents. Similarly, it is submitted that the allege murder, of Habibur Rahman; the alleged killing of ten people; the alleged rape; the alleged looting and destruction of the house are also distinct offences and therefore Charge 4 contains four separate incidents. As a result, it is submitted that this form of duplicitous charging is prejudicial to the Accused-Petitioner as it fails to differentiate between separate events within one charge.
25. The end result is that any conviction or acquittal of an offence within a multi-offence count will not be recognised which is particularly important at the sentencing stage.
26. For this reason, it is submitted that Charges 1, 2, 3, 4, 5, 7 and 9 are unspecific and contrary to section 16 ICTA as well as Bangladesh’s obligations under Article 14(3)(a) ICCPR.
Elements of crime
Section 3(2)(f) ICTA
27. Section 3(2)(f) ICTA provides the Tribunal with the power to try and punish “any other crimes under international law”. In Charges 11 to 14, the Accused-Petitioner has been charged with incitement under this section.
28. Paragraph 17 of this Review contains a detailed summary of the strict legal threshold to be met when prosecuting a charge of incitement.
29. It is respectfully submitted that where the offence of incitement is alleged, the nature of the speeches allegedly held by the Accused-Petitioner in August and September 1971 does not constitute a crime.
30. It is submitted that Charges 12, 13, 14 and the second paragraph of Charge 11 fail to establish the required causal link between the speeches allegedly held by the Accused-Petitioner and the commission of crimes against humanity. All three charges state, with minor differences in wording, that the Accused-Petitioner incited people “to take revenge and eliminate those struggling to free Bangladesh from occupation of Pakistani occupation”. Respectfully, this is not enough. Therefore, it is submitted that these three Charges fail to meet the threshold and should be dropped.
31. Further, in the third paragraph of Charge 11, the Accused-Petitioner is accused of incitement by omission, by being silent during a speech termed “hateful” by Abu Naser. It is respectfully submitted that, though omission can amount to incitement, the Accused-Petitioner’s silence in this Charge cannot amount to incitement because it does not meet the “direct and explicit” test.
32. Moreover, it is submitted that quoting from the Quran does not amount to an offence. Article 18 of the Universal Declaration of Human Rights (hereinafter: UDHR) enshrines the right to freedom of thought, conscience and religion, which includes the freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. Article 19 UDHR provides the right to freedom of opinion and expression, including the freedom 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.
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].
33. For this reason, it is submitted that Charges 11, 12, 13 and 14 do not stand up to scrutiny, are contrary to section 16 ICTA as well as Bangladesh’s obligations under Article 14(3)(a) ICCPR and should be dropped.
Section 3(2)(g) ICTA
34. Section 3(2)(g) ICTA provides the Tribunal with the power to try and punish “attempt, abetment or conspiracy to commit any such crimes” as under the Act. In Charges 3 and 15, the Accused-Petitioner has been charged with conspiracy under this section.
35. Paragraph 16 of this Review contains a detailed summary of the legal threshold to be met when prosecuting a charge of conspiracy: a “substantial contribution” to the commission of the offence. The test does not allude to any offence, but the offence. Further, the Kvocka Appeals Judgment stated that responsibility hinged upon “the effect of the assistance and on the knowledge of the accused”.
36. Charge 3 states that the Accused-Petitioner “conspired [at the Physical Training Institute] with the army officers in order to commit different international crimes against the Bengalis as a result of which throughout the country the auxiliary forces and the Pakistan army committed different international crimes.”
37. In addition, Charge 15 states that “as a result [of] such conspiracies, those Razakars have committed different crimes under the Act and you had complicity in those offences”.
38. It is respectfully submitted that it is impossible to determine whether the Accused-Petitioner’s had a substantial contribution, if any at all, to offences defined as “different international crimes” or “different crimes”.
39. For this reason, it is submitted that Charges 3 and 15 are unspecific and contrary to section 16 ICTA as well as Bangladesh’s obligations under Article 14(3)(a) ICCPR.
Definitions of offences
40. Section 3(2)(a) ICTA provides the list of crimes against humanity that fall within the jurisdiction of the Tribunal. Charge 1 of the 28 May 2012 Order includes “arrest” as a crime against humanity under this section.
41. It is respectfully submitted that “arrest” does not amount to an offence under this section.
42. It is recalled that previous defence submissions have respectfully called for the Tribunal to implement the necessary requirement to establish the contextual elements of crime in the Act so as to be able to ascertain whether the offence has been established.
43. It is respectfully re-submitted that it is in the interests of justice for the contextual elements of crimes against humanity to be established so that the Prosecution, Defence and Tribunal can be sure as to the extent or to which elements must be proven in order to secure either an acquittal or conviction. For this reason the Defence submits that the practice of international tribunals, specialising in crimes against humanity and genocide be taken into account at this stage in order to prevent confusion and delay during trial proceedings.
44. The ICC has documented the contextual elements of crimes against humanity in its ‘Elements of Crimes, Crimes Against Humanity’, which articulates exactly what needs to be proven in order to convict someone for any of the dozens of crimes listed within Articles 7 of the Rome Statute.
45. It is recalled that in its order dated 3 October 2011 in ICT BD Misc. Case No. 01 of 2011 in the matter of Delewar Hossain Sayedee, the Hon’ble Tribunal 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 emphasised 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.
46. For this reason, the Hon’ble Tribunal is, first, respectfully invited to establish clear definitions of Crimes against humanity, their mens rea, their actus reus and the elements of the offence in anticipation of the commencement of the trial against the Accused-Petitioner and other trials before the Hon’ble Tribunal. Secondly, it is respectfully requested that “arrest” be removed from Charge 1.
47. Pursuant to Rule 35 RoP, It is recognised the the Hon’ble Tribunal has the discretion to frame a charge against the Accused-Petitioner where it is supported by evidence in the formal charge, the Investigation Report, documents and materials.
48. Rule 37 RoP provides that where the Hon’ble Tribunal finds that where there is no sufficient ground to presume that the accused has committed an offence, it shall discharge the accused. Conversely, Rule 38 RoP provides that if, after consideration and hearing under Rule 37, the Tribunal is of the opinion that there is sufficient ground to presume that the accused has committed an offence, the Tribunal shall frame one or more charges for the offence of which he is accused.
49. The Hon’ble Tribunal has made use of its discretion in the framing of Charge 16, under which the Accused-Petitioner is charged with genocide under section 3(2)(c)(i) ICTA, intention to eliminate Bangladesh professionals and intellectuals, amongst others on or around 14 December 1971.
50. It is respectfully submitted that where a Tribunal seeks to frame a charge not presented by the Prosecution, it must meet a higher standard than that imposed on the Prosecution, as the Prosecution may not be able to introduce sufficiently strong evidence to prove all the elements of the offence.
51. With regards to Charge 16, whilst it is recognised that evidence tendered by the Prosecution shows the Accused-Petitioner was in command of Al-Badar during the relevant period, it is respectfully submitted that it fails to reveal any nexus between the Accused-Petitioner and the offences under section 3(2)(c)(1) ICTA committed on or around 14 December 1971 with which he is charged under Charge 16. Indeed, there is little specific evidence of any crimes at all committed on or around 14 December 1971.
52. It is respectfully reminded to the Hon’ble Tribunal that the threshold for command responsibility strictly requires a relationship between the superior and the subordinate, knowledge of the offences, and a failure to prevent or punish the offences.
53. It is respectfully submitted that the statements by each the witnesses fail to establish any nexus between the Accused-Petitioner and the events of 14 December 1971 as laid out in Charge 16.
54. Consquently, there is insufficient to draw any inference on the Accused-Petitioner’s authority over the offences in Charge 16 and, therefore, there is no proper basis for framing Charge 16.
55. More significantly, in framing Charge 16 without proper evidence, it is respectfully submitted that the Hon’ble Tribunal has exceeded its proper mandate: The Hon’ble Tribunal has made a determination on the merits and it cannot now sit in the judgment of Charge 16.
56. For this reason, the Hon’ble Tribunal is respectfully invited to remove Charge 16 from the 28 May 2012 Order.
Expunging inappropriate information and expressions
57. It is respectfully submitted that the 28 May 2012 Order should be expunged of inappropriate language in Charge 16, namely of the words “infamous” and “Gestapo” in relation to Al-Badar.
58. Equally, on page 5 and paragraph 3 of the 28 May 2012 Order the Hon’ble Tribunal states that the Awami League Election Manifesto justifies this trial. It is respectfully submitted that this opinion is inappropriate in that it confuses the prerogatives of the judiciary and executive and call into question the independence of the Hon’ble Tribunal from the current government.
59. Further, on page 6 of the 28 May 2012 Order the Hon’ble Tribunal states that the Accused-Petitioner “assisted Professor Golam Azam in forming the Shanti Committee, Razakars, Al-Badar, Al-Shams etc.” It is respectfully submitted that this comment, made in the preamble of the 28 May 2012 Order does not amount to a formal charge properly supported by evidence. It is therefore submitted that it is inappropriate and ought to be expunged.
60. Finally, it is respectfully that the Prosecution failed to reply to the Defence’s application for discharge on 11 February 2012 and therefore that the Hon’ble Tribunal erred in incorporating a summary of the Prosecution’s reply to discharge on pages 10 to 12 of the 28 May 2012 Order. Wherefore, it is respectfully requested that the Hon’ble Tribunal expunge these arguments from the 28 May 2012 Order.
61. For the abovementioned reasons, the Accused-Petitioner prays that the Hon’ble Tribunal exercise its discretion in the interests of justice as provided for in Rule 26(3) and conducts an immediate review of the 28 May 2012 Order.
Mizanul Islam raises three new points of their review application.
One is, to prosecute war criminal was in the election manifesto of the Awami league.
Justice Nizam: we have already heard this ground and this matter is disposed of.
Second one is, this law was only made for those 195 criminals who were given clemency.
Justice Nizam: This also has been heard.
Third one is, recitation from the Quran can not be a ground for incitement.