Tribunal TwoOut of date order posting. This is the order of the Tribunal given on 14 June 2012 in response to the application made by the defense seeking a review of the order of indictment.
Decision on application under Rule 26(3) seeking review of order dated 28 May 2012 framing Charges
Today is fixed for order. Leaned Prosecutor and the learned counsel for the defence are present in court room. The record is taken up for passing order.
1. Application and grounds taken therein
This has been an application under Rule 26(3) of the Rules of Procedure filed on behalf of accused Abdul Quader Molla seeking review of the order of framing charges dated 28 May 2012 on the grounds stated therein. The main grounds taken in the review application may be summarized as below:
• Absence of 'contextual requirement' to bring the criminal acts under the jurisdiction of the Tribunal .
• Charge No. I narrating the incident of single murder does not fall within the jurisdiction of the Tribunal as it is not a crime against humanity as specified in section 3(2) of the ICTA;
• Accused has been additionally charged for complicity. 'Complicity' is not an offence, but form of liability. Legal characterization of the offences is contrary to section 16(l) of the Act;
• ICTY Appeal chamber decision recognizes that 'abetment must have substantially contributed to the commission of offence. 'Assistance in a crime committed by an individual or in crime committed by a plurality of persons has to be proved for holding accused responsible as an ‘aider' or 'abettor'. But the charge of abatement so brought against the accused does not disclose it.
• The prayer for inserting the word ‘Al Badar' in the Formal Charges has been refused earier. But in the charges accused has been shown as Al-Badar which tantamounts to insertion or amendment and correction of the Formal charge No supporting materials to show that he was Al Badar leader
2. Submission by the Defence Counsel
The learned counsel for the accused mainly submitted that contextual requirement of the offence of murder is to be shown to attract the jurisdiction of the Tribunal. But the charges so framed do not contain this requirement as it is not clear whether the criminal conducts were directed against the civilian population. Next, it was argued that the charges mention the offence of complicity, together with the offence as specified in section 3(2)(a) and thereby cumulative charges have been framed which is not permissible in criminal jurisprudence. An accused can not be deemed concurrently as a principal and an accessory too. Charging the accused under section 3(2)(a)(g) could have been enough. It was further submitted that the tribunal refused to allow the prosecution in bringing the word Al-Badar by way of insertion in the Fromal Charge before the name of the accused and as such nowhere should not have been shown as member of Al-Badar, in the charges, particularly when there has been no document to establish it.
3. Submission by the Prosecutor
On contrary, the learned Prosecutor submitted that the grounds raised by the learned defence counsel, in course of hearing, did not fit to review of the order framing charges.The materials and documents prima facie go to show that the accused belonged to Al Badar Bahini and of course, the accused shall have benefit in the event of failure to establish it by the prosecution at trial. It was further submitted that the manner of framing charges in no way causes prejudice to the accused. The alleged offences of murder as crime against humanity were committed during the War of Liberation 1971 and those crimes were not isolated at all and those were resulted from organized plan and policy and the war of Liberation itself was a context that validly characterizes the atrocities as core international crimes'
4. Discussion and Decision
We have perused the application and the order of framing charges dated 28 May 2012. First, the Act does not embody provision of review. But the Rule 46(4) empowers the Tribunal only to correct clerical or numerical errors or omissions occurred in the order at any time. Next, Rule 26(3) provides procedure of bringing application seeking review of an order including the order of framing charges and Rule 26(4) deals with the procedure of disposing of such application.
Rule 26 (4) manifestly demonstrates that such application even may be disposed of summarily, if no materials are found on initial perusal. Thus, it is clear that after filing an application seeking review the same has to be perused to ascertain whether the same deserves to be referred to the Tribunal for hearing 'That is to say, hearing the application seeking review is not mandatory.
However, we consider it appropriate and just to resolve the crucial pleas raised by the defence, in course of hearing for clarity.
(a) Contactual Requirement: How and when can be well determined What we see in the Statute of lCTY? Article 5 of lCTY statute contains that. 'The lnternational Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population: (a) Murder (b) extermination (c) enslavement (d) deportation (e) imprisonment (f) torture (g) rape (h) persecutions on political' racial and religious grounds (i) other inhumane acts'
The widespread or systematic element first appeared in the ICTR Statute. Although, the statute of ICTY did not contain a 'widespread' or systematic" element' the ICTY adopted the element to prevent isolated and random acts from being prosecuted as crimes against humanity. [Prosecutor v Kunarac, case No lT-96-23-T &' IT-96-23 -T, Judgment, Feb 22, 2001 )
Thus, we see that the ICTY statute does not contain the 'widespread' or ‘systematic' requirement for constituting the offence of 'crimes against humanity'' It is the jurisprudence developed in ICTY that identified the 'widespread' or 'systematic' requirement.
The case of the prosecutor v. Gorun jelisic ICTY (Trial Chamber)' December 14, 1999 shows that in order to prove that the attack was widespread or systematic, the court must consider various factors' including'
- the existence of an acknowledged policy targeting a particular community,
- the establishment of parallel institution meant to implement this policy,
- the involvement of high level political or military authorities, resources military or other,
- the scale or the repeated, unchanging and continuous nature of the violence committed against a particular civilian population, etc.(paragraph 53)
The Act of 1973 defines the underlying acts therein as an offence of crime against humanity if it was ‘against the civilian population' which is consistent with the ICTY statute. An isolated act constituting crime under normal law is never directed against civilian population and thus such isolated crime is not considered as any core international crime. The jurisprudential development on contextual requirement comes to light through judgments of trial chamber and Appeal Chamber of ICTY in different cases and not at the stage of confirmation of indictment. Therefore, even if we feel it necessary to seek guidance from these jurisprudence, for resolving the issue of 'contextual requirement', we will be in need to identify and determine some crucial factors which relate to extensive evaluation of evidence, circumstances and other contexts that may be well depicted only at trial, not at this stage.
Fundamentally, at this stage, we categorically conclude that we cannot go beyond the provisions contained in the Act. We have already given our view, in this regard, observing too that it is not acceptable that the definition of crimes against humanity as specified in the Act of 1973 is not consistent with that of other ad hoc tribunals. This Tribunal does not have any obligation to be guided by the statute of any of ad hoc tribunals or that of the ICC. But it may seek guidance from international references, if so required, at trial stage, for the purpose of characterization of offences.
In view of above reasons we are not inclined to accept the argument advanced by the leamed defence counsel, as regards lack of contextual requirement to constituting the offence of crime against humanity.
(b) Single Murder of a civilian It has been argued that murder of Pallab for which charge no. 1 has wrongly been characterized as 'murder as crime against humanity' as it was a 'single murder' without contextual elements, for exarnple, 'widespread' or 'systematic'. This requirement is consistent with the jurisprudence and Statute of ICTY, ICTR.
Section 3(2)(a) of the Act of 1973 describes that the attack must be committed 'against any civilian population'. This requirement is consistent to the jurisprudence that the acts must be 'directed against' the population i.e. it must be 'the primary object of the attack'. The Blaskic Trial Chamber observed that a civilian is everyone who is no longer an active combatant in the 'specific situation' at the time of commission of the crime ( Prosecutor vs. Bkaskic note 167 para 214) .
Prima facie, at this stage, it cannot be detemined conclusively, merely on the plea that charge 1 relates to a 'single murder', whether the murder of Pallab, a civilian, was an isolated murder or 'murder as crime against humanity’. A crime need not be carried out against a multiplicity of victims in order to constitute a crime against humanity. Thus an act directed against a limited number of victims, or even against a single victim, can constitute a crime against humanity, provided it forms part of a 'widespread' or 'systematic' attack against a civilian population. (Nahimana, Barayagwiza and Ngeze, (Appeals Chamber), November 28, 2007,paru.924). Therefore, on the basis of plea raised now we refrain from making conclusive view, without arriving at a decision on contextual requirement as we have already observed herein above.
(c) Cumulative Charging On the issue of cumulative charging reference may be made to the principles distilled in the Kupreskic Judgement of 14 January 2000,117. Prosecutor v Kapreskic, Case No. IT-95-16-T, "Judgment' 14 January 2000, at paras. 681-682, 693] wherein it has been held that cumulative charges will be permitted where each offence requires proof of an element that the other does not (the "different elements" test), or alternatively, where each oflence protects substantially different values (although this would seldom be used as an independent ground for permitting cumulative charges). Ultimately, however, the Trial Chamber saw no reason to depart from the practice of leaving the issue to be determined at the end of trial.
However, bearing in mind that the fundamental harm to be guarded against by the prohibition of cumulative charges is to ensure that an accused is not punished more than once in respect of the same criminal act, there may be less reason for refusing to allow cumulative charging, as distinct from cumulative convictions or penalties. [The Prosecutor v Mladen Naletilic aka “Tuta”, and Vinko Martlnovic aka "stela" : ICTY Trial Chamberr 14 February 2011] What is to be punished is proven criminal conduct and that will not depend upon mere technicalities. In Kayishema the accused was charged cumulatively with, inter alia, genocide, crimes against humanity (extermination) and crimes against humanity (murder). These charges were based on the same conduct. [Prosecutor v Kayishema and Ruzindana, Case No ICTR-95-I-T (21 May 1999)  (‘Kayishema’).
On the issue of cumulative charging, the ICTY Appeals Chamber held that: ‘Cumulative charging is to be allowed in the light of the fact thaf, prior to the presentation of all of the evidence, it is not possible to determine to a certainty which of the charges brought against an accused will be proven. The Trial chamber is better poised, after the parties' presentation of the evidence, to evaluate which of the charges may be retained, based upon the sufficiency of the evidence. In addition, cumulative charging constitutes the usual practice of both this Tribunai and the ICTR.' [Celebici, Case No IT-96-21-A (20 February 2001) 
ln the Tadic case the Trial Chamber declined to evaluate the argument on the basis that the matter is only relevant to the penalty considerations if the accused is ultimately found guilty of the charges in question: “In any event. since this is a mater that will only be at all relevant insofar as it might affect penalty, it can best be dealt with if and when matters of penalty fall for consideration. What can, however, be said with certainty is that penalty can not be made to depend upon whether offences arising from the same conduct are alleged cumulatively or in the altemative' What is to be punished by penalty is proven criminal conduct and that will not depend upon technicalities of Pleading'
Thus we find a clear picture from the above jurisprudence regarding the cumulative charging and its effect. At the start of trial it is too early to assess the issue of concurrence. Whether the crimes as proved suffer from concurrence is a question that is best determined at trial when the Tribunals accepts or rejects the evidence adduced - only then will the Tribunal be fully seized of the culpable conduct and the elements applicable to the charges in question.
(d) Association with Al-Badar Correction in the way of inserting the word ‘member of Al Badar' to the Formal charge has been refused. But in course of perusal of statement of witnesses and documents, prima facie, it has been depicted that the accused had association with Al Badar. Charging the accused as Al-Badar itself does not allow us, at this stage, to conclude the truthfulness of it. It may be well adjudicated at trial, on total evaluation of evidence and documents. So, it is not correct to say that mere describing the accused as member of Al-Badar in the charges framed, tantamount to allowing prosecution's application seeking correction in the Formal Charge' It is true that the proposed insertion of the word 'Al-Badar' by way of amendment before the name of accused Abdul Quader Molla as occurs in the Formal charge has been refused but he has been prima facie depicted as Al Badar leader in the Formal Charge and documents submitted therewith by the prosecution , However, the burden of proving the accused as Al-Badar lies with the prosecution at trial and as such the defence has nothing to be prejudiced at this stage.
Apart from the reasons stated hereinabove, it is to be noted that the order framing charges for the offences levelled against the accused is a final order. Since it is a final order, there should be no re-opening of issues in the name of reviewing the order so passed by the Tribunal. The views of the Tribunal on material issues raised by the both sides, during hearing the charge framing matter, may be well extracted from the order itself. It is to be rnentioned that an order framing charges is not of interlocutory character and as such the Tribunal cannot alter its decision of final nature by reviewing it save as otherwise provided by the Rules except to correct a clerical or arithmetical error, in exercise of power under Rule 46(a) and if there are materials for considering the review application as required under Rule 26(4). The finality of an order could not be judged by the same judicial body that passed the order. Section I 0(1)(a) of the Act manifestly reveal that trial shall start from the stage of reading out the charge. Rules framed relating to review, however, cannot override and derogate the intent of the main statute.
The Tribunal (ICT-BD) is quite aware of the prohibition of imposing penalty for two offences constituted by these lf same criminal acts of the accused and as such we do not find any reason of being substantially prejudiced on plea of cumulative charging. This issue may be well addressed and determined at trial and this view finds support from the above intemational references. Form of culpability can not be conclusively determined, at this stage, without having been proved and complete portrayal of role and acts committed by the accused. Now, mere mentioning of more than one form of liability no way causes any prejudice to the accused.
On careful examination of the contentions made in the application seeking review of the order dated 23 May 20l2 framing charges against the accused Abdul Quqder Molla no substantial materials and grounds are found available for consideration' at this stage. The contentions agitated may be well adjudicated even at the trial stage.
However, despite the relevant jurisprudence and legal position as discussed hereinabove, we, having regard to submission made by the learned defence counsel' consider it just to bring a minor alteration in the second paragraph of each charge by inserting the words ‘or in the alternative' in place of the words ‘and also for’ before the words 'complicity to commit such offence' occurred therein' This portion of the order accordingly do form part of the order dated 28.5.20l2 framing charges and the office is thus directed to cause this alteration in the main order' However, there is no ground for interference with the verdict on charge framing Matter excepting them in or alteration in second paragraph of each charge, as ordered hereinabove. Therefore, the order dated 23 May 20|2 was a decision on merits found prima facie and as such the order under review deserves no other alterations as prayed for. With the above observations the application seeking review is thus disposed of