Monday, January 28, 2013

Azad Judgment analysis 2: Tribunal assumptions

This is the second part of my analysis of the judgement of Abul Kalam Azad and considers a number of aspects of the judgement's introductory sections. To see the first part, click here

Making factual judgements without evidence
In the introductory section, the judgement makes a number of statements - which appear to be factual findings of the court. These are as follows:

Para 10 states:
In the War of Liberation that ensued, all people of East Pakistan wholeheartedly supported and participated in the call to free Bangladesh but a small number of Bangalees, Biharis, other pro-Pakistanis, as well as members of a number of different religion-based political parties, particularly Jamat E Islami (JEI) and its student wing Islami Chatra Sangha (ICS) joined and/or collaborated with the Pakistan military to actively oppose the creation of independent Bangladesh and most of them committed and facilitated the commission of atrocities in violation of customary international law in the territory of Bangladesh. As a result, 3 million (thirty lac) people were killed, near about quarter million women were raped, about 10 million (one crore) people deported to India as refugees and million others were internally displaced. It also experienced unprecedented destruction of properties all over Bangladesh. (emphasis added)
Para 11 states:
The Pakistan government and the military setup number of auxiliary forces such as the Razakars, the Al-Badar, the Al-Shams, the Peace Committee etc, essentially to collaborate with the military in identifying and eliminating all those who were perceived to be sympathized with the liberation of Bangladesh, individuals belonging to minority religious groups especially the Hindus, political groups belonging to Awami League and other pro-Independence political parties, Bangalee intellectuals and civilian population of Bangladesh. Jamat E Islami (JEI), as an organization, substantially contributed in creating these para- militias forces (auxiliary force) for combating the unarmed Bangalee civilians, in the name of protecting Pakistan. (emphasis added)
Para 35 states:
Admittedly, during the period of War of Liberation in 1971 parallel forces e.g Razaker Bahini, Al-Shams, Al-Badar Bahini, Peace Committee were formed as auxiliary forces of the Pakistani armed force who provided moral supports , assistance and substantially contributed and also physically participated to the commission of horrendous atrocities in the territory of Bangladesh. It is the fact of common knowledge that thousands of incidents happened through out the country as part of organized and planned attack. Target was the pro-liberation Bangalee civilian population, Hindu community, pro-liberation political group, freedom fighters and finally the ‘intellectuals’. (emphasis added)

However, the court has heard no evidence on these matters - and in fact these are matters subject to adjudication in other cases before the tribunal.

In particular, it is pretty strange for the tribunal to state, on the basis of no evidence that has been heard before it in the introduction that:
-  most of [Jamat E Islami (JEI) and its student wing Islami Chatra Sangha (ICS)]  committed and facilitated the commission of atrocities in violation of customary international law in the territory of Bangladesh.  
- the purpose of Razakars, the Al-Badar, the Al-Shams, the Peace Committee etc, was essentially to collaborate with the military in identifying and eliminating all those who were perceived to be sympathized with the liberation of Bangladesh  
- Jamat E Islami (JEI), as an organization, substantially contributed in creating these para- militias forces (auxiliary force) for combating the unarmed Bangalee civilians 
- parallel forces e.g Razaker Bahini, Al-Shams, Al-Badar Bahini, Peace Committee were formed as auxiliary forces.
There may or may not be sufficient evidence to substantiate these conclusions - we have to wait and see the prosecution and defense evidence presented in the other cases to make a determination on that - but what is certainly true is that a trial judgement cannot just simply state these things without having heard evidence from both sides and stating the basis of the conclusion.

Perhaps the tribunal wanted to take judicial notice of these 'facts'. Section 19(3) of the International Crimes (Tribunal) Act 1073 does allows the tribunal to take 'judicial notice' of 'facts of common knowledge' - and not require 'proof of facts'.

However: (a) the tribunal does not state that it is doing so (prior to making these statements;** (b) if it was doing so, the parties were not informed of the court's intention so that they can respond and (c) these are very contentions matters, which are to some extent being adjudicated in other tribunals, and simply cannot be deemed to be 'facts of common knowledge' in this manner. 

It should be noted, for example, that Black's law dictionary defines facts that can be subject to judicial notice as those 'of a well known and indisputable' nature. 

Pre-determining Azad's guilt?
In the introductory section, prior to any discussion of the evidence against Abul Kalam Azad, Para 12 states the following about the accused
He studied in Faridpur Rajendra College and was a close associate of Ali Ahsan Mohammad Mujahid, the then President of East Pakistan Islami Chatra Sangha (ICS). Till formal formation of Razaker force, Moulana Abul Kalam Azad @ Bachchu actively aided the Pakistani army as an armed member of volunteer Razakar Force formed in Faridpur in committing criminal acts alleged. He, during the war of liberation in 1971, assisted the Pakistani occupation force initially in the capacity of ‘Razaker’ and subsequently as chief of Al-Badar bahini of Faridpur.

… On 21 April, 1971 he being united with the local anti liberation circle welcomed the Pakistani army in Faridpur district. He was a close associate of Pakistani army and actively and substantially assisted them as a potential member of Razakar (Volunteer) force in committing atrocities targeting the civilians and Hindu community and pro-liberation Bangalee people. In Faridpur, he was in charge of Razaker bahini which was equipped with rifles. (emphasis added)
It is very odd to position these two paragraphs in the introduction of the judgement and prior to a discussion of the adjudication of the evidence. Unfortunately, it gives the appearance that the tribunal has pre-judged the accused.

3. Numbers of dead
This issue is more of an aside .... and not really relevant to the judgement itself

The tribunal asserts that 'Some three million people were killed, nearly quarter million women were raped ... during the nine-month battle and struggle of Bangalee nation.' (para 3)

In doing so, it repeats what was stated in the first indictment passed by Tribunal 1 in relation to the Sayedee case.

There is however no legitimate evidence to support the contention that such a number died or were raped. The only population study that has attempted to assess the numbers of deaths during the 1971 suggest that there were about 500,000 deaths arising from the war, with a large proportion of these resulting from disease. The court did not hear any evidence on the issue of 'numbers'

This issue is discussed at some length here

The point about bringing this matter up is not to undermine the nature of the atrocities committed during the war, or to suggest that the war did not result in a very high level of losses. It is simply to point out that if the tribunal is supposed to be an adjudicator of truth, it would have been appropriate for it to have dealt with the issue of the number of dead in a more judicial manner - rather than repeating a number that has little or no factual basis.

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** It should be noted that subsequently, after making these statements, the judgement does go onto to state that some (but not all) of these matters are, in its view, matters of 'common knowledge'. However, as stated above, many of these matters are highly contentious, and there was no opportunity given for the accused lawyers to respond to these claims. (added, March 2014)

Part three: coming soon

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