25 Mar 2012: Azam charge framing response 1

After hearing the application relating to a revision of the order relating to home food for Azam, Barrister Abdur Razzak then read out from his written application in response to the charge framing application seeking the discharge of Azam from the charges. The written application is set out below

This went onto a second day

1. 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 and fixed the date of charge hearing on 15th February 2012. Thereafter, on 15th January 2012, the Defence obtained ten volumes of Prosecution Documents, including the Formal Charge and the Witness Statements.

3. That the Petitioner sets out in the paragraphs below a brief history of Jamaat-e-Islami, the background history of the International Crimes (Tribunals) Act 1973 and the Petitioner’s role in 1971 in response to the statements made in the Formal Charge.

4. The Petitioner was born on 7th November 1922. The Applicant completed his BA(Hons) in Arabic, English and Political Science in 1946 and MA in Political Science in 1948 from the University of Dhaka. Between 1947 and 1948, the Petitioner served as an elected General Secretary of Dhaka University Central Students Union (DUCSU) and continued in the same position during 1948-1949. On 27th November 1948, the Petitioner, as the DUCSU General Secretary, presented the Historic Memorandum demanding Bangla to be the State language to the then Prime Minister of Pakistan on behalf of all the students. He was Professor of Political Science at Rangpur Carmichael College from 1950 to 1954. He joined Jamaat-e-Islami in 1954. From 1954 till 1969, he served as Secretary of East Pakistan Jamaat-e-Islami. From 1969 till 1971, he was the Ameer (Chief) of East Pakistan Jamaat-e-Islami.

Brief History of Jamaat-e-Islami5. 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:

A. Islam is a complete code of life.

B. Those who are ready to accept this ideology must be organized and trained up according to that ideology.

C. The people thus trained up should strive to change the un-Islamic leadership and to establish Islam in the society

6. During the British period (1941-1947), Jamaat concentrated in the following activities:

A. To organize Islamic research for producing necessary books in various aspects of Islam.
B. 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.

C. 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.

7. 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.

8. 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 recognised 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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. Professor Ghulam Azam, the then Secretary of East Pakistan Jamaat-e-Islami, was given the executive responsibilities of COP in the first month of its operations. 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.

16. 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, while Professor Ghulam Azam was appointed as PDM’s East Pakistan Secretary. Professor Ghulam Azam, in his capacity as East Pakistan Secretary of PDM played a very important role in the movement against the Ayub regime.

17. 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. Professor Ghulam Azam was nominated as one of the representatives of Jamaat-e-Islami to attend the Round Table Conference in Rawalpindi. Jamaat-e-Islami played a very active role in the activities of DAC. Eventually, following a mass movement, Ayub Khan, on 24th March 1969 resigned as President of Pakistan.

18. 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.

19. After the election was over, as a matter of political courtesy, the Petitioner 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.

20. During the Liberation War in 1971, the Petitioner took all possible steps to save innocent civilians from the onslaught of the Pakistan Army. During his meetings with Tikka Khan and President Yayhya Khan, the Petitioner spoke out against the commission of atrocities by the Pakistan Army insisting that military action will only lead towards further alienation of the Bengali people. 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. There are numerous instances of the Petitioner making requests to the Pakistan Army on behalf of family members of civilians who had been taken into captivity by the Army, pursuant to which their lives had been spared.

21. On 22nd November 1971, the Petitioner went to the then West Pakistan to attend the central committee meeting of his party at Lahore. On 3rd December 1971, he started from Karachi to come to Dhaka. When his plane arrived at Colombo Airport enroute to Dhaka, the airline authorities were informed that neither the plane could land at Dhaka Airport nor in Karachi because of war between India and Pakistan. Thereafter, the plane flew to Jeddah, where the Petitioner stayed a few days and thereafter, came back to Karachi when the hostilities ended. In December 1972, the Petitioner went to Saudi Arabia to perform Hajj and after performing Hajj went to the United Kingdom, where he stayed as a visitor until his return to Bangladesh in July 1978.

22. 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.

23. In February 1972, a notification was issued against the Petitioner under the Collaborator’s Order 1972 (PO 8 of 1972) to appear before the Tribunal. Since the Petitioner was outside the country, he could not appear before the Tribunal. In April 1973, the Government of Bangladesh declared the Petitioner together with a number of other citizens, disqualified to be a citizen of Bangladesh under the Bangladesh Citizenship (Temporary Provisions) Order 1973, which the Petitioner successfully challenged. Both Divisions of the Supreme Court declared the Government’s notification as unlawful and unconstitutional. Apart from this notice under the Collaborators Order and the notification under the Bangladesh Citizenship (Temporary Provisions) Order 1973, no proceedings has 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. No FIR nor any petition has ever been filed against him in any police station or court of law in Bangladesh.

24. 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 legall. 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.

25. 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.

26. 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.

27. 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.

28. 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.

29. 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.

30. 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.

31. 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:

a. Bangladesh Labour Welfare Federation
b. Bangladesh Cultivators Welfare Association
c. Bangladesh Masjid Mission

32. Some of the institutions established by the Jamaat are as follows:
a. Bangladesh Islamic Institute
b. Syed Abul A’la Maududi Research Academy
c. Bangladesh Islamic Center
d. Islamic Education Society
e. Islamic Economics Research Bureau
f. Falah-e-Aam Trust
g. Darul Arabia and Darul Iftah
h. Adhunik Prakashani
i. Ideal Teachers Council

All these institutions maintain the principle of transparency and accountability.

33. 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.

34. 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.

35. 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.

36. 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.

Background of the International Crimes (Tribunals) Act 1973
37. Following the surrender of the Pakistan Army in December 1971 to the Joint Command of Bangladesh and Indian Forces, all the POWs 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 POWs for alleged war crimes.

38. Neither the Petitioner nor any member of his political party was included in the list of 195 POWs.

39. 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 POWs had been granted clemency by the Government of Bangladesh. Following the signing of this tripartite agreement, all POWs were sent to Pakistan without any trial. A chapter in history was closed.

40. From 1978 till date, the Petitioner has been residing as an ordinary citizen of BD. After obtaining citizenship in 1993, he regularly travelled outside Bangladesh and returned to Bangladesh without any hindrance. He is a free citizen of a free country. The present ruling party was also in power for two terms from 1972 to 1975 and from 1995 to 2001. At no point in time during these two terms of the present ruling party, any attempt was made to implicate him in the commission of war crimes. It is only on 1st August 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 4th 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.

41. 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.

42. 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 Soviet Union and 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.

43. 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 case of Professor Ghulam Azam, there has been a delay of 40 years in instituting proceedings against him.

44. 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.

Framing Charge Against the Petitioner

45. That Rule 37 of the Hon’ble Tribunal’s Rules of Procedure provides as follows:  “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”.

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

47. 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.

48. 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”.

49. 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.

50. That further 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 is reproduced below:

“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)”.

51. 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”.

52. That Bangladesh, being a state party to the Rome Statute for the International Criminal Court (hereinafter: ICC), it is under an obligation to comply with 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.).

53. 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

54. In paragraph 10 of the Formal Charge, the Prosecution prays that the Tribunal shall 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 Chatra Sangha, Peace Committee, Razakar force, Al-Badr force, Al-Shams force, Al-Mujahid”. This prayer has been made 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”.

55. It is stated that 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).

56. 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).

57. 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.

58. It is further submitted that in attempting to obtain judicial notice of the fact that the crimes listed in section 3 (2) IC(T)A, the Prosecution is attempting to remove any factual basis in each charge, as detailed below.
59. Furthermore, it is submitted that the Prosecution’s prayer for judicial notice has been presented incorrectly. This prayer 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.

60. For this reason it is submitted that judicial notice is not taken of the alleged facts listed in Paragraph 10 of the Formal Charge.

61. As abovementioned, the inclusion of Paragraph 10 of the Formal Charge has resulted in the exclusion of any factual basis in Paragraphs 7.1-7.4 and 8-9.10 of the Formal Charge. 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 charges in order to “give the accused person notice of the matter with which he is charged”. In failing to provide any factual nexus the Prosecution is only charging the Accused-Petitioner with modes of liability rather than any actual crime.

62. Furthermore, the factual nexus required in offences of planning and complicity must include conduct that meets a qualitative and quantitative threshold. In international customary law, it has ben established that the threshold for planning is one of ‘substantial likelihood’. This was upheld by the ICTY Appeals Chamber in Prosecutor v. Dario Kordic and Mario Cerkez which stated mens rea for planning is fulfilled by “a person who plans an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that plan. Planning with such awareness has to be regarded as accepting that crime” (IT-95-14/2-A, Judgment, 17 December 2004, para. 31).
63. 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) been recognised in international customary law as one of “substantial contribution” ” i.e. 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).

64. For the contribution to be deemed substantial it must be a contribution that “in fact has an effect on the commission of the crime” and that “the criminal act most probably would not have occurred in the same way had not someone acted in the role that the accused in fact assumed” (Prosecutor v Tadic IT-94-1-T, Opinion and Judgment, 7 May 1997, para. 688).

65. It is respectfully submitted that the speeches given by the Accused-Petitioner do not amount to substantial contribution or substantial likelihood for two reasons. Firstly, as abovementioned, the Prosecution has failed to establish that any crimes have actually been committed. Secondly, the Prosecution has failed to establish that the crimes were committed as a direct result of the speeches given by the Accused-Petitioner.

66. As a result of the omission of any factual framework, it is submitted that the proposed charge document is rather lengthy in volume and scant on specificity as to the factual basis of alleged crimes being committed. This is in direct violation of the purpose explicitly stated in section 16 IC(T)A and for this reason the Accused-Petitioner prays that the Accused Petitioner may be discharged.

67. As abovementioned, in Paragraphs 7.1-7.4 of the Formal Charge, the Prosecution seeks to charge the Accused-Petitioner with the offence of conspiracy, planning, incitement and complicity. In Paragraphs 9.5-9.8 of the Formal Charge, the Prosecution seeks to charge the Accused-Petitioner with the offence of contribution to conspiracy, contribution to planning, contribution to incitement and contribution to complicity.

68. It is respectfully submitted that this form of charging is incorrect and indeed amounts to double counting. 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).

69. It is submitted that the Prosecution’s form of charging is prejudicial to the Accused-Petitioner as it fails 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. 

Razzak then made a number of additional points

First Submission: This Act was enacted only for 195 foreign war criminals not for Bangladeshi so it is not applicable to us. nother point is this Act has no retrospective effect. The Act which has been amended in 2009, it is only applicable to those offences which are committed after 2009 not before that. Therefore, he cannot be prosecuted and punished under this Act.

Second submission:  how can an abettor be punished without giving punishment to the principle offender?

Justice Zaheer: That means you are agreed that the accused petitioner is an abettor.

Abdur Razzak: My lord, cognizance of the case has not been taken for an abettor. This tribunal and this Act are enacted for war criminal not for an abettor.

Third submission: Entire prosecution has a political purpose. Only from political motivation they filed this case. Therefore, it is the mala-fide exercise of power and mala-fide intention of the party.

Abdur Razzak: If there is no mala-fide exercise of power than the case would not be filed 40 years later of independence. My lord, in case Ruanda and Yugoslavia and in world war also, case has been filed immediately. But my lord, Bangladesh is an exception. If Jamaat-e-islam would work with Awami-league government then this case would never have been filed.

My lord, Ghulam Azam has been charged for Conspiracy on 6 grounds; Planning on 3 grounds, Complicity on 24 grounds, killing and torture on 12 grounds and Incitement, 28 grounds.

And in case of conspiracy: Ghulam Azam and some others political leaders met with Tikka khan on April, 1971. My Lord, if any person of that meeting would have given testimony against him, then it would be considered as conspiracy otherwise not. And then it would be reasonable to bring against him the allegation of conspiracy.

My lord, other than the case of siru miah, facts and circumstance of each case are same, in one case, these are described as conspiracy and in another case, and these are described as Incitement. Everywhere in the formal charge, there is repetition of the offence.

His another argument was that, Razaakar, Al Shams, Al Badr did not come under the definition of Auxiliary force as defined by the Act. He further said only those fronts are considered as Auxiliary force if they regulated or worked under the direction of Pakistan Military Army.

The matter was adjourned until 27 March.