Following the prosecution response to the application for recusal of the tribunal chairman/transfer of Azam's case to tribunal no.2, Razaq then argued his application for review of the charge-framing order against Azam. He made arguments based on the written application which is set out below.
1. That the Applicant is a peace loving citizen of Bangladesh. He is the former Ameer of Bangladesh Jamaat-e-Islami, which is a leading opposition political party.
2. On 9th January 2012, the Tribunal was pleased to take cognizance of offences allegedly committed by the Applicant under sections 3(2), 4(1) and 4(2) of the International Crimes (Tribunal) Act (hereinafter referred to as ‘the Act’), and directed the Applicant’s counsel to produce him before the Tribunal on 11th January 2012. On 11th January 2012, this Hon’ble Tribunal was pleased to reject the application for bail filed on behalf of the Applicant. Thereafter, the Applicant was taken into custody.
3. That on 11th January 2012, in view of his ill-health, the Applicant was admitted to the Prison Cell of Bangabandhu Sheikh Mujib Medical University (BSMMU).
4. That on 27th March 2012 and 28th March 2012, the Accused Petitioner’s counsels conducted hearing of the application for discharge filed by the Accused Petitioner in connection with commission of alleged offences under section 3(2) of the Act.
5. That on 13th May 2012, by Order No. 25, this Hon’ble Tribunal was pleased to reject the application for discharge and framed charges against him under sections 3(2), 4(1) and 4(2) of the Act.
6. That on 14th May 2012, the Petitioner’s counsels filed an application for a certified copy of the charge framing order dated 13th May 2012. Accordingly, on 23rd May 2012, the Petitioner’s counsels received the certified copy dated 21st May 2012. It is specifically stated on 21st May 2012 and 22nd May 2012, the Petitioner’s counsels had made enquiries with the Office regarding supply of certified copy of the charge framing order, but were informed that the certified copy was not yet ready. On the morning of 23rd May 2012, the counsel received the certified copy of the charge framing order. As such, this application for review is being filed within the limitation period of 7 days as provided in Rule 26(4) of the International Crimes Tribunal Rules of Procedure 2010 (‘the Rules’).
7. That the Petitioner files this application for review of the order of framing charges against the Accused Petitioner on the ground that the said order has been passed in violation of section 16 of the Act and Rule 38(1) of the Rules. There are a number of requirements that must be met in order for an Accused-Petitioner to be charged in accordance with law. 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(1) of the Act provides as follows:
“Every charge against an accused person shall state:
(a) the name and particulars of the accused person;
(b) the crime of which the accused person is charged;
(c) such particulars of the alleged crime as are reasonably sufficient to give the accused person notice of the matter with which he is charged”.
The use of the word “shall” in section 16 of the Act indicates that these requirements are mandatory.
8. It is therefore submitted that under the framework provided for by section 16 of the Act, the purpose of the framing of the charges is to characterize the alleged facts in accordance with the legal elements of a crime so as to provide the Accused-Petitioner with the opportunity to raise his defence.
9. 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)”.
10. This right under Article 14 (3) (a) has been discussed by the Human Rights Committee (hereinafter referred to as ‘the 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”.
11. That Bangladesh, being a state party to the Rome Statute for the International Criminal Court (hereinafter referred to as ‘the 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.).
12. 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 charges as framed against the Accused-Petitioner by Order No. 25 dated 13th May 2012 do not have any sound legal basis and contain insufficient factual information, and as such would result in an unfair trial by both domestic and international standard.
13. 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) of the Act which provides that the charges against an Accused must contain the particulars and facts of an alleged offence as the crimes of which the accused person is charged in order to “give the accused person notice of the matter with which he is charged”.
14. It is stated that the charges as framed against the Accused Petitioner do not contain sufficient factual averments as would enable the Accused to have sufficient notice of the charges against him. The charge framing order fails to specify the ‘particulars of the alleged crime’ committed by the Accused Petitioner. Nor does the said order specify which of the crimes mentioned in section 3(2) of the Act has allegedly been committed by the Petitioner. The charge framing order merely makes an omnibus reference to offences under section 3(2) of the Act and as such, fails to identity the crime with which the Accused person is charged. Furthermore, the said order fails to provide with sufficient specificity and clarity the nature of the allegations against the Accused Petitioner. In fact, no attempt has been made in the charge framing order to specify the particulars of the crimes allegedly committed by the Accused Petitioner, including the place, date and time of occurrence thereof. As such, the charge framing order, being vague and imprecise, has been passed in violation of section 16(1)(b) and (c) of the Act, and accordingly, the same is liable to be reviewed by this Hon’ble Tribunal.
15. Furthermore, the factual nexus required in offences of planning (Charge no. 2) and complicity (Charge No. 4) must include conduct that meets a qualitative and quantitative threshold. In international customary law, it has been 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).
16. 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” i.e. the abetment must have substantially contributed to the commission of the offence. This is 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. 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).
18. It is respectfully submitted that the press briefings and speeches given by the Accused-Petitioner do not amount to ‘substantial contribution’ or ‘substantial likelihood’ for two reasons. Firstly, as abovementioned, the charge framing order does not provide particulars of any crimes that have actually been committed, thereby rendering it impossible to determine whether, the Petitioner’s statements substantially contributed to the commission thereof. Secondly, the particulars of the crimes not having been specified in the charge framing order, there is no scope to argue that the alleged crimes were committed as a direct result of the press briefings and speeches given by the Accused-Petitioner.
19. That further, the charge framing order fails to set out the nature of the responsibility for the commission of crimes alleged against the Accused Petitioner. Failure to specify the form of participation of the Accused in a crime in the charge framing order renders the charge defective. Moreover, the charge framing order fails to specify which form or forms of liability is being alleged for each count and as such, the charge framing order lacks in specificity and is defective.
20. That although, the Accused Petitioner has been charged under section 4(1) of the Act, the charge framing order fails to specify the form of joint criminal enterprise being relied upon by the Prosecution. The charge framing order fails to specify the nature of the enterprise, the time periods and the persons involved and the nature of the accused’s participation in the criminal enterprise, thereby rendering the charge defective.
21. That it will be clear from a plain reading of the charge farming order that the Tribunal has charged the Accused Petitioner for (i) incitement to commit of offences under section 3(2) of the Act ; (ii) planning commission of offences under section 3(2) of the Act; (iii) conspiracy to commit offences under section 3(2) of the Act and (iv) complicity in the commission of offences under section 3(2) of the Act for the same conduct of the Accused Petitioner. Such cumulative charging on the basis of the same conduct of the Accused Petitioner is not permissible where there is no material difference in the offences alleged to have been committed by the Accused Petitioner. As such, it is submitted that the charge framing order is defective and is liable to be reviewed and set aside by this Hon’ble Tribunal.
22. That for reasons set out in the paragraphs below, the Accused Petitioner prays for expunging certain observations made by this Hon’ble Tribunal in the charge framing order dated 13th May 2012.
23. That in the section of the charge framing order titled ‘Historical Context’, this Hon’ble Tribunal referred to the formation and function of the Auxillary forces in the following terms:
“A number of Auxillary forces such as the Peace Committees, Razakars, Al-Badr, Al-Shams etc. were set up to assist the Pakistani military in eliminating all those who supported or sympathized with the liberation of Bangladesh, individuals belonging to minority religions groups, especially the Hindus, political groups belonging to the Awami League and other pro-independence political parties, Bengali intellectuals and civilian population of Bangladesh. Not only did the auxillary forces collaborate in the crimes committed by the occupying Pakistani Army, they themselves were also directly and actively involved in executing most of the alleged international crimes under the Act.”
24. That the aforesaid statements in the charge contain highly contentious issues which may be resolved only upon taking evidence. No evidence has been adduced by the Prosecution to establish the existence of a legal instrument placing the Peace Committees under the command and control of the Pakistan Army. As such, there is no scope for the Tribunal to conclude that Peace Committees were established as ‘auxillary forces’ of the Pakistan Army. Furthermore, the purpose and role of the auxillary forces is a highly contentious matter, which can only be resolved by taking evidence. Since the Razakar forces were admittedly raised under the provisions of the Razakar Ordinance 1971, there is no scope for the Tribunal to conclude, without taking evidence, that the auxillary forces were set up for the purpose of eliminating minority religious groups, i.e., the Hindus and political groups belonging to the Awami League. It is submitted that the aforesaid conclusions of the Tribunal in the charge framing order are not supported by the evidence on record, and as such, the same are liable to be expunged by way of review.
25. Furthermore, in the section of the charge framing order titled ‘The Accused’, the Hon’ble Tribunal stated the place of birth of the Accused Petitioner to be Birgaon, Nabinagar, Brahmanbaira, although the Accused Petitioner was in fact born in Dhaka. The Accused Petitioner accordingly prays for his place of birth to be correctly identified in the charge framing order as ‘Dhaka’ and not ‘Birgaon, Nabinagar, Brahmanbaria’.
26. In the same section of the charge framing order, the Hon’ble Tribunal stated as follows: “At the time of the liberation war in 1971, under his leadership, all the leaders and workers of Jamaat-e-Islami and its student wing Islami Chhatra Sangha opposed the liberation movement. At that time, Jamaat-e-Islami became an auxillary force of the Pakistan Army and since he was the Amir of Jamaat-e-Islami, he not only controlled the organizational framework of Islami Chhatra Sangha, but played the pivotal role in forming the Shanti Committee, Razakars, Al-Badr, Al-Shams etc.”
27. It is stated that the aforesaid statements are highly contentious matters, which cannot be assumed to be correct, without taking evidence. Since Jamaat-e-Islami and Islami Chhatra Sangha were separate entities, there is no scope for the Tribunal to observe that it was under the leadership of the Petitioner, that both Jamaat-e-Islami and Islami Chhatra Sangha opposed the liberation movement.
28. Furthermore, the conclusion of the Tribunal that at that time ‘Jamaat-e-Islami became an auxillary force of the Pakistan Army’ is manifestly perverse inasmuch as there is nothing on record to establish that Jamaat-e-Islami was placed under the control of the Pakistan Army for operational or administrative purposes. It is also undisputed that there is no legal instrument placing Jamaat-e-Islami under the control of the Pakistan Army and as such the observation of the Tribunal that in 1971, Jamaat-e-Islami became an auxillary force of the Pakistan Army is completely unwarranted, and as such the same is liable to be expunged.
29. It is also stated that the Tribunal’s observation that the Accused Petitioner ‘not only controlled the organizational framework of Islami Chhatra Sangha, but played the pivotal role in forming the Shanti Committee, Razakars, Al-Badr, Al-Shams’ is not supported by the evidence on record. The Accused Petitioner denies the allegation made against him by the aforesaid statement of the Tribunal. Such statements relate to highly contentious matters, which can only be resolved by taking evidence. As such, the observation of the Tribunal as aforesaid is liable to be expunged by way of review.
30. That furthermore, in the same section of the charge framing order titled ‘The Accused’, this Hon’ble Tribunal made extensive reference to the Accused Petitioner’s alleged involvement in the formation of East Pakistan Restoration Committee in 1972. Accordingly, the Tribunal observed as follows: “… in the first part of 1972, he formed a committee named Purbo Pakistan Punoruddhar Committee (East Pakistan Restoration Committee) as part of his campaign to restore East Pakistan. As a leader of this committee up to March 1973, he tried to create sentiments against Bangladesh in the Islamic countries of the Middle East and campaigned internationally against recognizing Bangladesh as an independent and sovereign State. He left Pakistan for London in the middle of 1973 and set up the head office of the ‘Purbo Pakistan Punoruddhar Committee’ there. He also published a weekly newspaper named Shonar Bangla in London which propagated against Bangladesh … He visited Saudi Arabia in March 1975 and met King Faisal where he also canvassed against Bangladesh. He told the King that Hindus had captured East Pakistan, Qurans had been burnt, Mosques had been destroyed and converted into Mandirs and many Muslims had been killed. On the basis of this propaganda he collected funds from the Middle East in the name of re-establishing mosques and madrashas.”
31. It is specifically stated that the aforesaid observations and statements of the Hon’ble Tribunal are completely incorrect. The Petitioner had no involvement whatsoever in the formation of the East Pakistan Restoration Committee nor was he involved in the publication of the weekly newspaper ‘Sonar Bangla’ from London. Furthermore, the Petitioner denies that he collected funds from the Middle East on the basis of the propaganda that ‘Hindus had captured East Pakistan Qurans had been burnt, Mosques had been destroyed …’. It is stated that there is no scope for the Tribunal to consider these highly disputed questions of facts, which are essentially the Prosecution’s version of historical events, to be true in the absence of any evidence being brought on record to support such conclusions.
32. Furthermore, the Tribunal’s observation that during a meeting with King Faisal in March 1975, the Accused Petitioner had said that ‘Hindus had captured East Pakistan Qurans had been burnt, Mosques had been destroyed’ is completely unwarranted since the same has been made on the basis of the statement of a Prosecution Witness, namely Misbahur Rahman Chowdhury allegedly made to the Investigating Officer. It is stated that there is no scope for the Tribunal to consider the statement of Misbahur Rahman Chowdhury, a Prosecution Witness, purportedly made to the Investigating Officer to be true unless such statement is made on oath, which is then subjected to cross examination. In the circumstances, the Accused Petitioner prays for expunging the aforesaid observations of the Hon’ble Tribunal by way of review.
33. In the premises and in the interests of justice, the Accused Petitioner prays for review of Order No. 25 dated 13th May 2012 and setting aside the charge framing order, in the manner stated hereinabove, as being in violation of section 16(1) of the Act. The Accused Petitioner also prays for expunging the observations of the Tribunal, as quoted in paragraphs 23, 26 and 30 hereinabove and for correction of his place of birth as stated in paragraph 25 above.
The following oral arguments took place:
Abdur Razzak: This is a review application of the charge farming Order because the said Order is passed in violating the section sec16 and rule 38 (1).
My lord, birthplace of the Ghulam Azam is wrongly stated in the indictment Order.
There is planning, conspiracy, incitement all over the indictment. My lord, my submission is these all are vague statement, so these are nothing but violation of the section 16(1) of the Act.
Justice Nizam: You did lots of meetings at that time and for that result several crimes was committed all over the Country. These crimes were the affects of his meeting.
Abdur Razzak: Which crime? Crime against humanity or conspiracy?
Justice Nizam: All crimes had been committed.
Abdur Razzak: That means I am liable under 3(2) (g)?
Justice Nizam: Yes, “any such crime” under section 3(2) (g). We are generally charging him under 3(2) (g) but if you stress upon this matter than we will write 3(2) (a) and 3(2) (C).
Justice Nizam: I have given a speech and for that result someone commits killing, someone set houses on fire, and someone commits looting. So it is not possible to separate all this crime and frame charge in all cases. That is the reason all crimes are included in 3(2). And he was charged under section 4(2) of the Act as he was leader of Jamaat-i-islam.
Abdur Razzak: It is stated in the order, 'At that time Jamaat-e-Islami became an auxiliary force under the Pakistan Army and since he was the Amir of Jamaat-e-Islami, he not only controlled the organizational framework of Islami Chatra Sangha but played the pivotal role in forming the Shanti Committee, Razakars, Al-Badar, Al-Shams etc."
My lord, the aforesaid statements are highly contentious matters, which cannot be assumed to be correct, without taking evidence. Since Jamaat-e-Islami and Islami Chhatra Sangha were separate entities, there is no scope for the Tribunal to observe that it was under the leadership of the Petitioner, that both Jamaat-e-Islami and Islami Chhatra Sangha opposed the liberation movement.
My lord, of professor Ghulam azam was responsible as he was the leader of the Jamaat-i-islam than why abul-ala-moududi was not liable; he was also the commander-in-chief of the Jamaat-i-islam.
Justice Nizam: Prima facie it has been found in the formal charge that Jamaat-i-islam is involved in atrocities during the War. If command responsibly established then the charge will exist otherwise not.
Abdur Razzak: It is said in the order, “After the liberation of Bangladesh, he apparently formed the East Pakistan Restoration Committee and collected funds in Saudi Arabia”. My lord, the Petitioner had no involvement whatsoever in the formation of the East Pakistan Restoration Committee.
My lord, all charges are the same except shiru miah. My lord, how can a mere speech amount to a crime against humanity? Charges incitement, conspiracy, planning are not specific enough for the accused to defend himself.
Zaed-al-malum the prosecutor argued that in case of discharge application the defense had submitted the same ground.
Then the court was adjourned.