To see part 5, click here - dealing with charges, 5 and 6To see part 6, click here - dealing with contextual requirements to quality offenses as crimes against humanity and other defense arguments
To see part 7, click here - conclusion and sentence
XII. Summing up of Cases
(i) Summing up of the Prosecution Case
46. Mr. Mohammad Ali, the learned Prosecutor started summing up of its own case on 17 December 2012. At the outset, in his introductory submission, submitted that prosecution and trial of persons responsible for atrocities committed during the War of Liberation 1971 is the demand of nation to come out from the culture of impunity and also to provide redress the sufferings caused to the victims and their relatives. The learned Prosecutor paying tribute and homage to the Father of Nation Bangabandhu Sheikh Mujibur Rahman and millions of martyrs went on to place a brief portrayal of historical background that pushed the Bengali nation to the movement of self-determination which eventually got shape of War of Liberation. The then Pakistani government and the occupation troops’ policy was to resist the War of Liberation in its embryo and as such ‘operation search light’ was executed in Dhaka causing thousands of killing and mass destruction, with the aid and organizational support mainly from Jamat-E-Islam (JEI), its student wing Islami Chatra Sangha (ICS) and pro-Pakistan political parties and individuals. Respecting the preamble of the International Crimes (Tribunals) Act 1973 (The Act XIX of 1073) the government has constituted this Tribunal for prosecution, trial and punishment of persons for genocide, crimes against humanity committed in the territory of Bangladesh in 1971.
47. Learned Prosecutor, further submitted that in furtherance of ‘operation search light’ atrocities had been committed in the locality of Mirpur and adjacent areas of Dhaka city as listed in the charges framed. In committing atrocities as have been charged were perpetrated by the armed gang led by accused Abdul Quader Molla, in furtherance of common design.
48. The case concerns events of crimes against humanity that took place on six different places and on different dates. Of six charges three speak of his physical participation in committing crimes and in respect of remaining charges he had aided and substantially contributed to the commission of crimes. Prosecution, out of 40 witnesses as cited by the Investigation Officer and 09 additional witnesses, as permitted by the Tribunal under section 9(4) of the Act produced and examined in all 12 witnesses including the IO. It has been submitted that not the number but the quality of witnesses is to be considered and prosecution considered it sufficient to produce and examine such number of witnesses to prove the charges and it has been able to prove it beyond reasonable doubt.
49. As regards evidence made by the P.W.s, it has been submitted that charge nos. 1, 2 and 3 depend on hearsay witnesses. Testimony of P.W.2, and P.W.10 relates to charge no.1 (Pallab Killing); testimony of P.W.2, P.W.4 and P.W.10 relates to charge no.2 (Poet Meherunnesa & her inmates killing) and testimony of P.W.5 and P.W.10 relates to charge no.3 (Khondoker Abu Taleb Killing). Mirpur was chiefly Bihari populated locality and for the reason of horrific situation prevailing at that time it was not possible for a Bengali person to witness the events. It would reveal from evidence of P.W.9 Amir Hossain Molla that when they organized a volunteer force being inspired by the historic speech of Banga Bandhu on 07 March 1971 in Mirpur locality and had received training under supervision of ‘Sadhin Bangla Chatra Sangram Parishad’, the accused Abdul Quader Molla being accompanied by 70/80 members belonging to ICS was engaged in providing training to Biharis at Mirpur locality for protecting Pakistan.
50. Thus, the accused formed a ‘force’ consisting of local Biharis on his own initiation and naturally he had effective control on its members. When in furtherance of ‘operation search light’ the local Biharis started committing atrocities in the area of Mirpur, for obvious reason, the accused had conscious knowledge of it and he too aided, abetted and substantially facilitated to the commission of those crime. On the wake of sudden atrocious activities targeting Bengali population in Mirpur most of the local Bengali people who were very few in number, being frightened, had left the locality and as such there was no practical chance for them to remain present at the crime sites and to witness the events.
51. Therefore, it was natural to learn the incidents and involvement of perpetrators thereof. Rather learning the incidents and complicity of perpetrators from general people was natural. All these valid reasons lawfully justify to act on the hearsay evidence to determine complicity of accused Abdul Quader Molla who had led local Biharis to the accomplishment of the crimes described in charge nos. 1,2 and 3. The learned prosecutor further added that the Tribunal is not bound by the technical rules of evidence and it shall accord in its discretion due consideration to hearsay evidence on weighing its probative value.[Rule 56(2) of the ROP].
52. Next, it has been argued that even evidence of a single witness is enough to prove a charge if it inspires credence. In relation to charge no.4 (Ghatarchar Killing) P.W.1, P.W.7 and P.W. 8 have testified and they are live witnesses who had described how the accused Abdul Quader Molla acted and participated to the commission of crimes. P.W.1, prior to the incident, when one day he was coming to Dhaka city’s Mohammadpur area he found Abdul Quader Molla standing in front of Physical Training Institute which was known as ‘torture cell’ having a rifle in hand. It also strengthens the fact of his complicity with the incident of ‘Gahtarchar mass killing’. Accused Abdul Quader Molla accompanied Pakistani occupation army and local accomplices with intent to participate and carry out the operation causing killing of 67 Bengali unarmed civilians.
53. The learned Prosecutor continued to argue, on factual aspect that with intent to annihilate the pro-liberation Bengali civilians the Pakistani occupation army and their local accomplices including accused Abdul Quader Molla launched attack to Alubdi village nearer to Mirpur locality and caused killing of about 400 Bengali unarmed civilians. It was ‘genocide’ as the perpetrators with intent to destroy the Bengali Population, in whole or in part, killed a significant number of members of Bengali Population of a particular village. The operation was destructive in nature and instantly after the massacre the remaining civilians were compelled to flee leaving their homes and property. They were internally displaced in consequence of destructive pattern of the organized attack. Thus, the incident truely falls within the definition of ‘genocide’ as specified in section 3(2)(c) (i) of the Act of 1973 instead of ‘crimes against humanity’. P.W.6 and P.W.9, as live witnesses, have described how the incident took place and who the perpetrators were. They are quite natural and credible witnesses. Litigations might have been brought against P.W.9 out of political rivalry and land disputes. But merely for this reason his credibility cannot be questioned. Rather, it is to be weighed as to how far truth has been demonstrated from his evidence. P.W.3 Momena Begum is a live witness (eye witness) who has testified the event alleged in charge no. 6. Merely for the reason that she is a single witness in support of this charge his sworn testimony cannot be excluded.
(ii) Summing up of the Defence Case
54. It has been argued on this legal issue by the learned senior counsel for the defence Mr. Abdur Razzak that there has been no limitation in bringing criminal prosecution but inordinate delay of long 40 years must be explained. But the prosecution remained totally silent without offering any explanation on this issue in its formal charge submitted under section 9(1) of the Act which is the foundation of the case.
55. The Act of 1973 and first amendment of the constitution will go to show that intention of the framers of the legislation was to prosecute and try the 195 listed war criminals of Pakistan armed force and not the civilians as the phrase ‘including any person’ was replaced by the phrase ‘any person’ belonging to armed force or auxiliary force.
56. The phrase ‘individual’ or ‘group of individuals’ have been brought to the Act of 1973 by an amendment in 2009. It has been done with a malafide intention for bringing the local civilians within the jurisdiction of the Act of 1973. Such amendment itself indicates well that the Act of 1973 as enacted on 20.7.1973 was meant to prosecute 195 listed war criminals of Pakistani armed force and not ‘any person’ or ‘individual’.
57. Pursuant to the ‘tripartite agreement’ dated 09.4.1974 195 listed war criminals have been given clemency. Thus, the matter of prosecuting and trying them under the Act of 1973 ended with this agreement.
58. The cumulative effect of intention of enacting the Act of 1973, unexplained delay in bringing instant prosecution and bringing amendment of the Act of 1973 in 2009 incorporating the phrase ‘individual’ or ‘group of individuals’ inevitably shows that bringing prosecution against the accused under the Act of 1973 is malafide and with political motive.
59. The learned senior counsel for the accused further submitted that the accused could have been prosecuted as aider and abettor only under the Collaborators Order 1972, if he actually had committed any offence of aiding and abetting the principals. But 40 years after without bringing the principal offender to justice the accused cannot be prosecuted and tried under the Act of 1973, particularly when the principals i.e. 195 listed war criminals belonging to the Pakistani armed force have been forgiven and immune.
60. The learned senior counsel Mr. Abdur Razzak has further submitted, apart from the above legal issue, that the testimony of witnesses in relation to charge nos. 1,2,3 is unattributable hearsay in nature and thus it cannot be relied upon. Prosecution has failed to establish the link of accused with the commission of crimes alleged in these charges. The telling evidence does not indicate anything as to the fact that the accused by his acts assisted or provided encouragement or moral support to the principal perpetrators of crimes alleged.
61. The learned counsel has advanced pertinent contention relating to elements of the offence of crimes against humanity. He has submitted that to characterize an offence as crimes against humanity it must have the elements ; (i) Attack for causing listed offences in the Act of 1973 (ii) victim must be civilian (iii) the attack must be part of systematic or widespread and (iv) Mens rea or knowledge. But prosecution has failed to establish that the presence of these elements in relation to the alleged killing of Pallab as listed in charge no.1. Evidence led by prosecution does not fit to description from which it can be inferred that the offence of killing Pallab was not an isolated crime but an offence of crimes against humanity. The learned counsel advanced similar argument so far it relates to legal points, in respect of charge no.2.
62. In relation to charge nos. 4,5 and 6, the learned senior counsel argued that the witnesses examined in support of these three charges are not credible. Prosecution has failed to show that they had reason to see the alleged event and know the accused since prior to the events alleged. Mere seeing the accused standing in front of Physical training center, Mohammadpur having a rifle in hand in the month of November, as narrated by P.W.1 Mozaffar Ahmed Khan does not link him with the commission of any of crimes alleged and that he was Al-Badar Commander. P.W.3 Momena Begum claims to have witnessed the event of killing of her father and atrocities as alleged in charge no.6 but according to her own version she heard about her father Hazrat Ali Laskar’s killing. Besides, her statement made and archived in the museum of Mirpur Jallad Khana speaks something else. Defence has submitted photographed copy of her earlier statement made to the said museum before the Tribunal on 09.1.2013 which would show glaring inconsistencies between that and her testimony made before the Tribunal. Apart from this, Momena’s version has not been corroborated by any other witnesses and as such relying on uncorroborated testimony of a single witness is not safe. The events alleged in four charges took place during the early part of the war of liberation and during that time Al-Badar was not formed and thus it cannot be said that the accused allegedly participated or acted to the perpetration of crimes alleged in the capacity of a member of Al-Badar.
63. As regards standard of proof it has been submitted by the learned senior defence counsel that three facts have to be considered for evaluating the standard of proof. These are (i) elements to constitute the offence of crimes against humanity (ii) mode of liability of the person accused of offence alleged and (iii) fact indispensable for convictions. Prosecution’s burden is not in any way reduced if it lacks unassailable standard of proof which may only lead to a conclusion as to guilt of accused beyond reasonable doubt.
64. Mr. Abdur Razzak the learned defence counsel concluded his argument by making submission that the defence is not disputing the commission of crimes alleged but the prosecution has failed by adducing materials and evidence that the accused either had complicity or aided or abetted to the accomplishment of such crimes. The telling evidence adduced does not suggest that any act on part of accused which assisted or provided encouragement or moral support and the same had substantial effect to the actual commission of crimes perpetrated by the principals.
65. The learned senior counsel went on to submit that the case of Akayesu so far it relates to corroboration of single sex victim testimony does not fit with the instant case and the observation made in paragraph 13-135 of this judgment does not help the prosecution at all. The learned counsel reiterated that the mens rea element is absent in this case as there has been no facts and circumstances that could validly lead to an inference that the accused acted knowing the consequence of the attack and context thereof.
66. Finally, the learned senior counsel, submitted that defence does not dispute the commission of crimes alleged but the accused who has been charged with was not in Dhaka during 1971 and he had been staying at her native village Amirabad, Faridpur where he was running business at ‘Chowdda Rashi Bazar’ and in support of this plea of alibi , defence has adduced and examined four witnesses including the accused himself. Merely for the reason that at the relevant time the accused belonged to Islami Chatra Sangha (ICS) he has been prosecuted with political motive and he deserves acquittal.
XIII. The way of adjudicating the charges
67. The evidence produced by both parties in support of their respective case was mainly testimonial. Some of prosecution witnesses allegedly directly experienced the dreadful events they have narrated in court and that such trauma could have an impact on their testimonies. However, their testimony seems to be invaluable to the Tribunal in its search for the truth on the alleged atrocious events that happened in 1971 war of liberation directing the Bangalee civilian population, after duly weighing value and credibility of such testimonies.
68. Despite the indisputable atrociousness of the crimes committed during the war of liberation in 1971 in collaboration with the local perpetrators, we require to examine the facts constituting offences alleged and complicity of the accused therewith in a most dispassionate manner, keeping in mind that the accused is presumed innocent. In this regard the Tribunal(ICT-2) recalls the provisions contained in section 6(2A) of the Act of 1973 together with the observation of US Justice Frankfurter[ [Dennis v. United States( 341 US 494-592)para 525: page 208 of Final defence argument pack] , as cited by the learned senior defence counsel which is as below:“Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgemnt is best informed, and therefore most dependable, within narrow limits. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures.”
69. It should be borne in mind that the alleged incidents took place 42 years back, in 1971 and as such memory of live witness may have been faded. Therefore, in case like one in our hand involving adjudication of charges for the offence of crimes against humanity we are to depend upon (i) facts of common knowledge (ii) documentary evidence (iii) reporting of news paper, books etc having probative value (iv) relevant facts (v) circumstantial evidence (vi) careful evaluation of witnesses’ version (vii) Political status of the accused at the relevant time and (viii) the jurisprudence evolved on these issues in the adhoc tribunals. In the prosecution of crimes against humanity, principally accused’s status, position, association, authority, conduct, activities, link with the state organization are pertinent issues even prior to the alleged events. In determining culpability of the accused, all these factors have to be addressed and resolved as well.
70. It is to be noted, in particular when the Tribunal acts on hearsay evidence, it is not bound to apply the technical rules of evidence. Rather the Tribunal is to determine the probative value of all relevant evidence admitted. Hearsay evidence, in a trial under the Act of 1973, is not inadmissible per se, but that such evidence should be considered with caution and if it carries reasonable probative value.
71. Therefore, we have to resolve whether these crimes were committed and if so, whether the accused is guilty of those charges brought against him. The prosecution, in the light of the charges framed, is burdened to prove-(i) commission of the crimes alleged (ii) mode of participation of the accused in committing any of crimes alleged (ii) how he acted in aiding and abetting or providing encouragement or moral support to the commission of any of crimes (iii) How he had complicity to commission of any of crimes (iv) the elements necessary to constitute the offence of crimes against humanity (v) liability of the accused.
72. Admittedly, the accused has been indicted for the crimes committed in violation of customary international law and thus this Tribunal shall not be precluded from borrowing guidance from the jurisprudence evolved to characterize the offences alleged as crimes against humanity.
XIV. Backdrop and Context
73. The backdrop and context of commission of untold barbaric atrocities in 1971 war of liberation is the conflict between the Bangalee nation and the Pakistani government that pushed the Bangalee nation for self determination and eventually for freedom and emancipation. War of Liberation started following the ‘operation search light’ in the night of 25 March 1971 and lasted till 16 December 1971 when the Pakistani occupation force surrendered. Ten millions (one crore) of total population took refuge in India under compelling situation and many of them were compelled to deport.
74. What was the role of the accused during the period of nine months? What were his activities? What he did and for whom? Had he link, in any manner, with the Pakistani occupation force or pro-Pakistan political party Jamat E Islami (JEI) and the militia forces formed for implementing organizational policy or plan and if so, why?
75. We take the fact of common knowledge which not even reasonably disputed that, during that time parallel forces e.g Razaker Bahini, Al-Badar Bahini, Peace Committee were formed as accessory forces of the Pakistani occupation armed force who provided moral supports , assistance and substantially contributed to the commission of atrocities through out the country into our notice. Thousands of incidents happened through out the country as part of organized and planned attack. Target was the pro-liberation Bangalee population, Hindu community, political group, freedom fighters and finally the ‘intellectuals’. We are to search answers of all these crucial questions which will be of assistance in determining the liability of the accused for the offence for which he has been charged. The charges against the accused arose from some particular events during the War of Liberation in 1971.
76. The case, as it transpires, is founded on oral evidence and documentary evidence as well. The evidence adduced by the prosecution is to be evaluated together with the circumstances revealed, relevant facts and facts of common knowledge. It would be expedient to have a look to the facts of common knowledge of which Tribunal has jurisdiction to take judicial notice [Section 19(3) of the Act of 1973]. However, before we address the above factual issues involved we prefer to resolve the legal issues agitated by the defence. Inevitably determination of these issues will be of assistance in arriving at decision on facts in issues.
XVI. Addressing legal issues agitated
77. Before we enter into the segment of our discussion on adjudication of charges we consider it convenient to address and resolve the legal issues agitated during summing up of cases of both parties.
Summary of Argument advanced by the defence Counsel on legal aspects
78. Mr. Abdur Razzak the senior defence counsel, in course of summing up of defence case has taken pain in raising some pertinent legal issues. He argued that 40 years delay in prosecuting the accused remained unexplained and such inordinate and unexplained delay creates doubt and fairness of prosecuting the accused; that the phrase ‘individual’ and ‘group of individuals’ have been purposefully incorporated in the Act of 1973 by way of amendment in 2009 and as such the accused cannot be brought to jurisdiction of the Tribunal as an ‘individual’; that the Act of 1973 was enacted to prosecute , try and punish 195 listed Pakistani war criminals who have been exonerated on the strength of ‘tripartite agreement’ of 1974 and as such without prosecuting those listed war criminals present accused cannot be brought to justice as merely aider and abettor; that the accused could have been prosecuted and tried under the Collaborator Order 1972 if he actually had committed any criminal acts constituting offences in concert with the Pakistani occupation army; that it is not claimed that the accused alone had committed the offences alleged and thus without bringing his accomplices to justice the accused alone cannot be prosecuted; that the crimes alleged are isolated in nature and not part of organized attack ; that the offences have not been adequately defined in the Act of 1973 and for characterizing the criminal acts alleged for constituting offence of crimes against humanity the Tribunal should borrow the elements as contained in the Rome Statute as well as from the jurisprudence evolved in adhoc Tribunals.
Summary of Reply of Prosecutor to argument advanced by the Defence on Legal Points
79. In reply to these legal contentions, Mr. Mohammad Ali, the learned Prosecutor submitted that there is no limitation in bringing criminal prosecution, particularly when it relates to ‘international crimes’ committed in violation of customary international law. Mr. Prosecutor went on to submit that the ‘tripartite agreement’ cannot bung up in bringing prosecution under the Act of 1973 against ‘auxiliary force ‘ and ‘individual’ or ‘group of individuals’. Besides, the ‘tripartite agreement’ which was a mere ‘executive act’ did not give immunity to listed 195 war criminals belonging to Pakistani occupation army from being prosecuted. The Collaborators Order 1972 was meant to prosecute and try the persons responsible for the penal offences and not for committing ‘international crimes’; that the offences of crimes against humanity for which the accused has been charged with were part of organised and planned attack. The offence of crimes against humanity is well defined in the Act of 1973. The phrase ‘committed against civilian population’ as contained in section 3(2)(a) of the Act of 1973 itself patently signifies that acts constituting offences specified therein are perceived to have been committed as part of ‘systematic attack’. The context of war of liberation is enough to qualify the acts as the offences of crimes against humanity. Our Tribunal which is a domestic Tribunal constituted under our own legislation enacted in the sovereign parliament meant to prosecute, try and punish the perpetrators of ‘international crimes’ taking the context and pattern of atrocities into account may arrive at decision whether the acts constituting the offences can be qualified as crimes against humanity.
XVII. Determination of Legal Aspects
(i) Does Unexplained Delay frustrates prosecution case
80. It has been argued on this legal issue by the senior learned counsel for the defence Mr. Abdur Razzak that there has been no limitation in bringing criminal prosecution but such inordinate delay of long 40 years must be explained. But the prosecution remained totally silent without offering any explanation on this issue in its formal charge submitted under section 9(1) of the Act which is the foundation of the case. The learned defence counsel, in support of his submission relating to unexplained inordinate delay in bringing prosecution has cited some decisions and has contended that unexplained delay makes the prosecution reasonably tainted and doubtful and offers an impression of malafide intention to prosecute the accused.
81. In support of his contention the learned senior counsel for the defence has cited some decisions and drew attention to the meaning of ‘malafide’ adding further that in every adhoc tribunals and tribunals set up for prosecuting and trying crimes against humanity and genocide the persons accused of such crimes have been brought to jurisdiction of tribunal within shortest possible of time and mostly instantly after the event of atrocities committed. No delay occurred in either tribunal in trying the offence of crimes against humanity. Thus prosecution is obliged to offer an explanation of 40 years delay for dispelling doubt as to genuineness of prosecution.
82. Having regard to above submission, we are of view that from the point of morality and sound legal dogma, time bar should not apply to the prosecution of human rights crimes. Neither the Genocide Convention of 1948, nor the Geneva Conventions of 1949 contain any provisions on statutory limitations to war crimes and crimes against humanity. Article I of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity adopted and opened for signature, ratification and accession by General Assembly resolution 2391 (XXIII) of 26 November 1968 provides protection against even any statutory limitation in prosecuting crimes against humanity, genocide etc. Thus, criminal prosecutions are always open and not barred by time limitation.
83. Still the Nazi war criminals of the Second World War are being prosecuted. Trials of genocides committed during the 1973 Chilean revolution and the Pol Pot regime of Cambodia in the1970s are now ongoing. The sovereign immunity of Slobodan Milosevic of Serbia, Charles Taylor of Liberia, and Augusta Pinochet of Chile (with the Chilean Senate's life-long immunity) as the head of state could not protect them from being detained and prosecuted for committing genocides, crimes against humanity, and war crimes.
84. It is a fact of common knowledge that in 1981, Maurice Papon, who has died aged 96, was the minister for the budget in the administration of Prime Minister Raymond Barre, when his role in the deportation of French Jews during the Second World War was uncovered. Papon had been charged in 1997 on the basis of his activities from 1942 to 1944. Eventually brought to trial, he was convicted in 1998 of complicity in crimes against humanity and sentenced to a 10-year prison sentence for ordering the arrest and deportation of 1,690 Jews, including 223 children, from the Bordeaux region to the Nazi death camps in Germany.
85. None of this would have been known if it had not been for the research of Michel Bergès, a young French historian working in the departmental archives of the Gironde. He was looking for documents concerning relations between local wine merchants and the Germans during the occupation. By chance he came across the archives of the department of Jewish affairs, which had been attached to the préfecture of Bordeaux at the time of Vichy, the puppet government set up by the Nazis. In these forgotten papers he found evidence concerning the forced deportation of Jews from Bordeaux to the transit camp at Drancy, near Paris (from where they were sent to the death camps), during the years 1942 to 1944.
86. Maurice Papon always claimed that he was the victim of a political trial that had caused him great suffering and the death of his wife, who died during the trial. Nevertheless, on April 2 1998, after the longest postwar trial, Maurice Papon was found guilty of the arrest and deportation of French Jews during the years 1942-1944 [http://www.guardian.co.uk/news/2007/feb/19/guardianobituaries.france [Douglas Johnson :The Guardian, Monday 19 February 2007]
87. Taking the above instance into account and in view of settled position and in the absence of any statutory limitation, as a procedural bar, only the delay itself does not preclude prosecutorial action to adjudicate the culpability of the perpetrator of core international crimes. Indubitably, a prompt and indisputable justice process cannot be motorized solely by the painful memories and aspirations of the victims. It requires strong public and political will together with favourable and stable political situation. Mere state inaction, for whatever reasons, does not render the delayed prosecution readily frustrated and barred by any law.
88. Here, we cannot abstain from taking the historical context prompting such delay in prosecuting the ‘individuals’ responsible for atrocities in 1971 war of liberation. The Statute was enacted in 1973. But after the dark episode of assassination of Bangabandhu Sheikh Mujibur Rahman and his family on 15 August 1975 the process was halted and even the Collaborators Order 1972 was repealed on 31.12.1975. The individuals and political organizations which played visibly a notorious and antagonistic role resisting the war of Liberation in 1971 were allowed of being rehabilitated and recognized in all spheres of state. Even some of potential individuals actively affiliated with the politics of Jamat E Islami (JEI) in 1971 and its student wing Islami Chatra Sangha (ICS) got fair opportunity of sharing state power. Unfortunately, the nation carrying enormous pains had to play the role of mere spectator. Because, the situation was not favourable for raising voice for prosecuting the perpetrators of serious crimes committed in violation of customary international law in 1971. Democracy too remained halted till 1991 and there was no favourable situation, strong political will and consensus till 2009 to prosecute the offenders under the Act of 1973. This history of common knowledge itself is explanatory for delayed prosecution and thus the accused cannot be said to have been prosecuted and tried under the Act of 1973 for political purpose.
89. Prolonged impunity and the related denial of the truth will allow old wounds to fester and may increase post-traumatic stress suffered by the victims of human rights crimes. [Special Rapporteur on the Right to Restitution, Comp. & Rehab. for Victims of Gross Violations of Human Rights & Fundamental Freedoms, Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, 135, Common on Human Rights, Econ. & Soc. Council, U.N. Doc. E/CN.4/Sub.2/1993/8 (July 2, 1993) [hereinafter van Boven] (by Theo van Boven).]
90. In this respect, Cohen has observed that “after generations of denials, lies, cover-ups and evasions, there is a powerful, almost obsessive, desire to know exactly what happened.” [STANLEY COHEN, STATES OF DENIAL: KNOWING ABOUT ATROCITIES AND SUFFERING 225 (2001)]. In Bangladesh, the efforts initiated under a lawful legislation to prosecute, try and punish the perpetrators of crimes committed in violation of customary international law is an indicia of valid and courageous venture to come out from the culture of impunity. Customary international law has finally progressed to a stage where States may not point to the passage of time to escape their duty to prosecute and punish perpetrators of genocide, crimes against humanity, and war crimes in their own courts.
91. Crimes against humanity and genocide, the gravest crime never get old and that the perpetrators who are treated as the enemies of mankind will face justice. We should not forget it that the millions of victims who deserve that their tormenters are held accountable; the passage of time does not diminish the guilt. Considerations of material justice for the victims should prevail when prosecuting crimes of the extreme magnitude is on the process. Justice delayed is no longer justice denied, particularly when the perpetrators of core international crimes are brought to the process of justice. Again, what consequence would follow if no explanation regarding delay is made while prosecuting the accused for perpetrating crimes against humanity has not been elaborated by the learned defence counsel. However, there can be no recognised theory to insist that such a ‘system crime’ can only be pursued within a given number of years. Therefore, delayed prosecution does not rest as a clog in prosecuting and trying the accused and creates no mystification about the atrocities committed in 1971.
(ii) Legislative Intention in enacting the Act of 1973 and subsequent incorporation of ‘Individual’ or group of individuals’ to the Act by amendment of the Act in 2009
92. By drawing attention to the Parliamentary debate dated 13 July 1973 on the issue of passing the Bill for promulgating the International Crimes (Tribunals) Act 1973, the learned senior counsel for the defence has submitted that pursuant to the above debate eventually the Act of 1973 was enacted on 20 July 1973 after bringing first amendment of the Constitution on 15 July 1973.
93. It has been further submitted that the Act of 1973 and first amendment of the constitution will go to show that intention of the framers of the legislation was to prosecute and try the 195 listed war criminals of Pakistan armed force and not the civilians as the phrase ‘including any person’ was replaced by the phrase ‘any person’ belonging to armed force or auxiliary force. The first amendment of the constitution was brought so that no ‘civilian person’ could be prosecuted and tried under the Act of 1973.
94. The learned senior counsel for the defence went on to submit further that a press release dated 17 April 1973 [Page 1 of the defence Argument pack] prior to first amendment of the constitution and thereby abatement of the Act of 1973 also goes to show that government’s intention was to prosecute and try only the 195 listed war criminals of Pakistani occupation armed force and their ‘auxiliary force’ which acted under its control.
95. The learned prosecutor Mr. Mohammad Ali, in reply, has argued that the Act of 1973 is meant to prosecute, try and punish any ‘individual’ or ‘group of individuals’ , or any member of armed, defence or auxiliary force for the offences specified in section 3(2) of the Act of 1973. If it is not proved that the accused belonged to ‘auxiliary force’ even then he may be brought to jurisdiction of the Tribunal if he is found to have perpetrated offences enumerated in the Act of 1973 in the capacity of an ‘individual’.
96. It is true that initially the Act of 1973 was enacted to prosecute try and punish the 195 listed war criminals of Pakistani occupation armed force and their ‘auxiliary force’. Till 2009 the Act of 1973 was dormant and no Tribunal was constituted under it. Pursuant to the tripartite agreement of 1974 195 listed war criminals of Pakistani armed force were allowed to walk free which was derogatory to jus cogens norm. The history says, for the reason of state obligation to bring the perpetrators of responsible for the crimes committed in violation of customary international law to justice and in the wake of nation’s demand the Act of 1973 has been amended for extending jurisdiction of the Tribunal for bringing the perpetrator to book if he is found involved with the commission of the criminal acts constituting offences as enumerated in the Act of 1973 even in the capacity of an ‘individual’ or member of ‘group of individuals’
97. It is to be noted that it is rather admitted that even under retrospective legislation (Act enacted in 1973) initiation to prosecute crimes against humanity, genocide and system crimes committed in violation of customary international law is quite permitted, as we have already observed.
98. We are to perceive the intent of enacting the main Statute together with fortitude of section 3(1) of the Act. At the same time we cannot deviate from extending attention to the protection provided by the Article 47(3) of the Constitution to the Act of 1973 which was enacted to prosecute, try and punish the perpetrators of atrocities committed in 1971 War of Liberation.
99. The legislative modification that has been adopted by bringing amendment in 2009 has merely extended jurisdiction of the Tribunal for bringing the perpetrator to book if he is found involved with the commission of the criminal acts even in the capacity of an ‘individual’ or member of ‘group of individuals’. It is thus validly understood that the rationale behind this amendment is to avoid letting those who committed the most heinous atrocities go unpunished. This is the intent of bringing such amendment.
100. It may be further mentioned here that the words ‘individual’ or ‘group of individuals’ have been incorporated both in section 3 of the Act of 1973 and in Article 47(3) of the Constitution by way of amendments in 2009 and 2011 respectively. The right to move the Supreme Court for calling any law relating to internationally recognised crimes in question by the person charged with crimes against humanity and genocide has been taken away by the provision of Article 47A(2) of the Constitution. Since the accused has been prosecuted for offences recognised as international crimes as mentioned in the Act of 1973 he does not have right to call in question any provision of the International Crimes (Tribunals) Act 1973 or any of amended provisions thereto.
101. Thus, we hold that the contention raised by the defence is of no consequence to the accused in consideration of his legal status and accordingly the defence objection is not sustainable in law, particularly in the light of Article 47(3) and Article 47A(2) of the Constitution.
(iii) Tripartite Agreement and immunity to 195 Pakistani war criminals
102. It has been argued by the learned senior defence counsel that pursuant to the ‘tripartite agreement’ dated 09.4.1974, 195 listed war criminals belonging to Pakistani armed force have been given clemency. Thus the matter of prosecuting and trying them under the Act of 1973 ended with this agreement. As regard local perpetrators who allegedly aided and abetted the Pakistani occupation armed force in committing atrocities including murder, rape, arson the government enacted the Collaborators Order 1972. Thus the Collaborator Order 1972 was the only legal instrument to bring the local perpetrators to book.
103. It would reveal even from the preamble of the Collaborators Order 1972 that it was promulgated and meant to prosecute and try the local civilians who aided and abetted the armed forces in committing crimes against humanity, genocide and or in waging war during 1971 within the territory of Bangladesh. If the accused in fact had committed any act of aiding or abetting to the perpetration of any offence of crimes against humanity or genocide he could have been prosecuted under the Collaborators Order 1972. Instead of initiating any such step long 40 years after, with malafide intention and for achieving political gain, the accused has been brought under the jurisdiction of the Tribunal constituted under the Act of 1973.
104. Having regard to above submission and careful look to the Act of 1973 and the Collaborators Order 1972 we are constrained to hold that it is not good enough to say that no ‘individual’ or member of ‘auxiliary force’ as stated in section 3(1) of the Act of 1973 can be brought to justice under the Act for the offence(s) enumerated therein for the reason that 195 Pakistani war criminals belonging to Pak armed force were allowed to evade justice on the strength of ‘tripartite agreement’ of 1974.
105. Such agreement was an ‘executive act’ and it cannot create any clog to prosecute member of ‘auxiliary force’ or an ‘individual’ or member of ‘group of individuals’ as the agreement showing forgiveness or immunity to the persons committing offences in breach of customary international law was derogatory to the existing law i.e the Act of 1973 enacted to prosecute those offences.
106. It is settled that the jus cogens principle refers to peremptory principles or norms from which no derogatory is permitted, and which may therefore operate a treaty or an agreement to the extent of inconsistency with any such principles or norms. We are thus inclined to pen our convincing view that the obligation imposed on the state by the UDHR (Universal Declaration of Human Rights) and the Act of 1973 is indispensable and inescapable and as such the ‘tripartite agreement’ which is mere an ‘executive act’ cannot liberate the state from the responsibility to bring the perpetrators of atrocities and system crimes into the process of justice.
107. As state party of Universal Declaration of Human Rights (UDHR) and Geneva Convention Bangladesh cannot evade obligation to ensure and provide justice to victims and sufferers of those offences and their relatives who still suffer the pains sustained by the victims and as such an ‘executive act’ (tripartite agreement) can no way derogate this internationally recognized obligation. Thus, any agreement or treaty if seems to be conflicting and derogatory to jus cogens (compelling laws) norms does not create any hurdle to internationally recognized state obligation.
108. Next, the Act of 1973 is meant to prosecute and punish not only the ‘armed forces’ but also the perpetrators who belonged to ‘auxiliary forces’, or who committed the offence as an ‘individual’ or member of ‘group of individuals’ and nowhere the Act says that without prosecuting the armed forces (Pakistani) the person or persons having any other capacity specified in section 3(1) of the Act cannot be prosecuted. Rather, it is manifested from section 3(1) of the Act of 1973 that even any person (individual or member of group of individuals), if he is prima facie found individually criminally responsible for the offence(s), can be brought to justice under the Act of 1973.
109. Amnesty shown to 195 listed war criminals are opposed to peremptory norms of international law. It is to be noted that any agreement and treaty amongst states in derogation of this principle stands void as per the provisions of international treaty law convention [Article 53 of the Vienna Convention on the Law of the Treaties, 1969]
110. Despite the immunity given to 195 listed war criminals belonging to Pakistani armed force on the strength of ‘tripartite agreement’ the Act of 1973 still provides jurisdiction to bring them to the process of justice. Provisions as contained in section 3(1) of the Act of 1973 has kept the entrance unbolt to prosecute, try and punish them for shocking and barbaric atrocities committed in 1971 in the territory of Bangladesh. Of course in order to prosecute and try those 195 war criminal belonging to Pakistani army a unified, bold and national effort would be required. It is to be noted that the perpetrators of crimes against humanity and genocide are the enemies of mankind.
111. Therefore, the argument that since the main responsible persons (195 war criminals belonging to Pakistan Army) have escaped the trial, on the strength of the ‘tripartite agreement’ providing immunity to them, the next line collaborators or perpetrators cannot be tried is far-off to any canons of criminal jurisprudence. We are of the view that the ‘tripartite agreement’ is not at all a barrier to prosecute even a local civilian perpetrator under the Act of 1973.
(iv) The accused could have been prosecuted and tried under the Collaborators Order 1972 and prosecution under the Act of 1973 is malafide
112. The learned defence counsel has attempted to submit that the cumulative effect of intention of enacting the Act of 1973, unexplained delay in bringing instant prosecution and bringing amendment of the Act of 1973 in 2009 by incorporating the phrase ‘individual’ or ‘group of individuals’ inevitably shows that bringing prosecution against the accused under the Act of 1973 is malafide and for political purpose. The accused could have been prosecuted, tried and punished under the Collaborators Order 1972, if actually he had committed any act of aiding or abetting to the commission of crimes alleged.
113. The Collaborators Order 1972 was a different legislation aiming to prosecute the persons responsible for the offences enumerated in the schedule thereof. It will appear that the offences punishable under the Penal Code were scheduled in the Collaborators Order 1972. While the 1973 Act was enacted to prosecute and try the ‘crimes against humanity’, ‘genocide’ and other system crimes committed in violation of customary international law. There is no scope to characterize the offences underlying in the Collaborators Order 1972 to be the same offences as specified in the Act of 1973.
114. In the case in hand, we have found that the accused has been alleged to have committed or aided and abetted or had complicity to the perpetration of the offences enumerated in the 1973 Act. The elementary truth and message that we have got from the example of delayed prosecution of a Nazi war criminal Maurice Papon that a person whoever may be or whatever position he occupied he cannot be relieved from being prosecuted for the crimes committed in violation of customary international law even after long lapse of time and thus merely for the reason of delayed prosecution it cannot be readily branded as political and malafide prosecution
115. Therefore, we are disinclined to accept the argument that merely for the reason that since the accused was not brought to justice under the Collaborators Order 1972 now he is immune from being prosecuted under the Act of 1973.
(v) Whether the accused can be prosecuted as an aider or abettor without prosecuting the Principals and his accomplices
116. Another question has been agitated by the defence. According to the charges it will reveal that apart from the accused, some other co- perpetrators accompanied the accused at the crime site in committing the crimes. But excepting accused, none of his accomplices has been brought to justice.
117. The accused could have been prosecuted as aider and abettor only under the Collaborators Order 1972. But 40 years after without bringing the principal offender to justice the accused cannot be prosecuted and tried under the Act of 1973, particularly when the principals i.e. 195 listed war criminals belonging to the Pakistani armed force have been forgiven and immune. The tripartite agreement speaks that the government had decided not to proceed with the trial of those 195 war criminals.
118. The accused has been charged with for the offence of ‘murder’ the event of which will appear to be isolated and as such for such isolated crimes he could have been prosecuted and tried under the Collaborators Order 1972 which was meant to try the offences as scheduled therein i.e the offences punishable under the Penal Code. On this score as well the charges brought against the accused cannot be sustainable in law.
119. First, let us have a look to the case of Charles Taylor (SCSL). On 26 April 2012, a Trial Chamber of the Special Court for Sierra Leone (SCSL), with Justice Richard Lussick presiding, convicted former Liberian President Charles Taylor for 'aiding and abetting' war crimes and crimes against humanity. Charles Taylor was indicted by the Prosecutor in 2003 when he was a sitting president and Head of State of Liberia.He was not prosecuted and tried together with any other offender or principal perpetrator. He was however acquitted of ordering the commission of the crimes – a more serious mode of participation than aiding and abetting. Taylor was also acquitted of superior/command responsibility and joint criminal enterprise (JCE). Therefore, we find that in law, either ‘aiding’ or ‘abetting’ alone is ample to render the perpetrator criminally liable.
120. On this legal issue we may recall the principle enunciated by the ICTR Trial Chamber that “A person may be tried for complicity in genocide even where the principal perpetrator of the crime has not been identified, or where, for any other reasons, guilt could not be proven.” [ Akayesu, (Trial Chamber), September 2, 1998, para. 531 and Musema (Trial Chamber), January 27, 2000, para.174]
121. The Act of 1973 has enumerated ‘abetting’ and ‘aiding’ as distinct offence and punishable there under. From the jurisprudence evolved in the ICTR and SCSL it is now settled that even only the abettor and aider to perpetration of crimes underlying in the statutes. The above international references also consistently supplement our own view that ‘abetting’ or ‘aiding’ or conspiracy’ being distinct offence in the Act of 1973 the persons responsible for any of these unlawful acts that substantially facilitated the commission of offence enumerated in section 3(2)(a)(c) can lawfully be brought to justice.
(vi) Definition and Elements of Crime
122. The learned defence counsel has argued that the offences specified in section 3(2) are not well defined and the same lack of elements. Section 3(2) of the ICTA 1973 does not explicitly contain the ‘widespread or systematic’ element for constituting the crimes against humanity. In this regard this Tribunal may borrow the elements and definition of crimes as contained in the Rome Statute. It has been further argued that an ‘attack’ may be termed as ‘systematic’ or ‘widespread’ if it was in furtherance of policy and plan. But there has been evidence to show that the alleged offences were perpetrated in furtherance of any plan or policy and the accused was linked to the implementation of such policy and plan. Thus the offence if actually happened, in absence of context and policy and plan the same cannot be characterized as crimes against humanity.
123. Tribunal notes that ‘policy’ and ‘plan’ are not the elements to constitute the offence of crimes against humanity. It is true that the common denominator of a systematic attack is that it is carried out pursuant to a preconceived policy or plan. But these may be considered as factors only and not as elements. This view finds support from the observation made in paragraph 98 of the judgment in the case of prosecutor v. Kunarac [Case No. IT-96-23/1-A: ICTY Appeal Chamber 12 June 2002] which is as below: “ Neither the attack nor the acts of the accused needs to be supported by any for of “policy’ or “plan’. ............Proof that the attack was directed against a civilian population and that it was widespread or systematic, are legal elements to the crime. But to prove these elements, it is not necessary to show that they were the result of the existence of a policy or plan..........Thus, the existence of a policy or plan may be evidently relevant, but it is not a legal element of the crime.”
124. The learned senior counsel next argued that section 3(2)(a) provides that the acts must be committed ‘against any civilian population’ for constituting the offence of crimes against humanity. But the section does not contain the ‘widespread’ or ’systematic’ element to exclude the probability that the offences were isolated and random in nature. The section 3(2)(a) of the Act resembles to Article 6(c) of the Nuremberg Charter. It is further submitted that the ICTY Statute does not contain the ‘widespread’ or ;’systematic’ element but it has developed jurisprudence by its judgment in the case of Tadic (Appeal Chamber: ICTY) that for qualifying the offences as crimes against humanity it must be committed as part of ‘widespread’ or ’systematic’ attack. But the prosecution has utterly failed to show by evidence that the offences for which the accused has been charged with were part of the ‘widespread’ or ’systematic’ attack. In this regard the case of Prosecutor v. Tadic [Case No. IT-94-1-T: ICTY Trial Chamber, judgment 7 May 1997, para 646 (Page- 142 of the Final Argument Pack submitted by the defence)] has been cited which is as below: “While this issue has been the subject of considerable debate, it is now well established that the requirement that the acts be directed against a civilian “population” can be fulfilled if the acts occur on either widespread basis or systematic manner. Either one of these is sufficient to exclude isolated or random acts.”
125. We are of view that section 3(2)(a) of the Act is self contained and fairly compatible with the international jurisprudence. Before coming to a finding as to whether the attack directed against civilian population, in 1971, on political, racial, ethnic or religious grounds was systematic let us have a look to the jurisprudence evolved on this issue.
126. If we make a closer look to the contemporary standards of definition of 'Crimes against Humanity' in various Statutes, first this observation can be made that there is no 'consistency' among definitions. The definition of ‘Crimes against humanity’ as contemplated in Article 5 of the ICTY Statute 1993 neither requires the presence of 'Widespread and Systematic Attack' nor the presence of 'knowledge' thereto as conditions for establishing the liability for 'Crimes against Humanity'. True, the Rome Statute definition differs from that of both ICTY and ICTR Statutes.
127. Section 3(2) (a) of the International Crimes (Tribunals) Act, 1973 (as amended in 2009) [henceforth, 1973 Act] defines the 'Crimes against Humanity' in the following manner: 'Crimes against Humanity: namely, murder, extermination, enslavement, deportation, imprisonment, abduction, confinement, torture, rape or other inhumane acts committed against any civilian population or persecutions on political, racial, ethnic or religious grounds, whether or not in violation of the domestic law of the country where perpetrated;'
128. It is now settled that the expression ‘committed against any civilian population’ is an expression which specifies that in the context of a crime against humanity the civilian population is the primary object of the attack. The definition of ‘Crimes against humanity’ as contemplated in Article 5 of the ICTY Statute 1993 neither requires the presence of 'Widespread and Systematic Attack' nor the presence of 'knowledge' thereto as conditions for establishing the liability for 'Crimes against Humanity'. It is the jurisprudence developed in ICTY that identified the ‘widespread’ or ‘systematic’ requirement.
129. True, the Rome Statute (a prospective statute) definition differs from that of both ICTY and ICTR Statutes. But, the Rome Statute says, the definition etc. contained in the Statute is ‘for the purpose of the Statute’. So, use of the phrase “for the purpose of the Statute” in Article 10 of the Rome Statute means that the drafters were not only aware of, but recognized that these definitions were not the final and definitive interpretations, and that there are others. Thus, our Tribunal (ICT) which is a domestic judicial body constituted under a legislation enacted by our Parliament is not obliged by the provisions contained in the Rome Statute. The Rome Statute is not binding upon this Tribunal for resolving the issue of elements requirement to constitute the offence of crimes against humanity.
130. If the specific offences of 'Crimes against Humanity' which were committed during 1971 are tried under 1973 Act, it is obvious that they were committed in the ‘context’ of the 1971 war. This context itself is sufficient to prove the existence of a ‘systematic attack' on Bangladeshi self-determined population in 1971. It is the ‘context’ that transforms an individual’s act into a crime against humanity and the accused must be aware of this context in order to be culpable of crime alleged. The Tribunal, as per section 19(3) of the 1973 Act, shall not require proof of facts of common knowledge; it shall take judicial notice of such fact. The specific offences committed as 'Crimes against Humanity' during 1971 war, were very much a part of a ‘systematic attack’ of the ongoing atrocious activities.
131. The section 3(2)(a) of the Act states the 'acts' constituting the offences of crimes against humanity is required to have been ‘committed against any civilian population' or 'persecution on political, racial, ethnic or religious grounds'. To qualify as a crime against humanity, the acts enumerated in section 3(2)(a) of the Act must be committed against the ‘civilian population’ on national, political, ethnic, racial or religious grounds. Thus, an “attack against a civilian population” means the perpetration against a civilian population of a series of acts of violence, or of the kind of mistreatment referred to in sub-section (a) of section 3(2) of the Act of 1973. Conducts constituting ‘Crimes’ ‘directed against civilian population’ thus refers to organized and systematic nature of the attack causing acts of violence to the number of victims belonging to civilian population. Therefore, the claim as to the non-existence of a consistent international standard for the definition of ‘crimes against humanity’ as enumerated in the Act of 1973 is manifestly baseless.
(vii) Mens rea or Knowledge
132. The learned senior counsel reiterated that the mens rea element is absent in this case as there has been no facts and circumstances that could validly lead to inference that the accused acted knowing the consequence of the attack and context thereof.
133. It appears that only one paragraph in the Tadic judgment refers to this question, and it summarily considers existing case law on whether or not the perpetrator of crimes against humanity must have knowledge of the context within which the acts are committed. [Prosecutor v. Tadic, Case No. IT-94-1-T, opinion and judgment, 7 May 1997, para 657]. The mens rea of the offences was not considered, most likely because Dusko Tadic offered an alibi defence, which does not raise questions about intent, and simply denies that the accused was present or involved when the crime was committed. In the case before us, the accused has taken a plea of alibi contending that at the relevant time even during the entire period of war of liberation in 1971 the accused was not in Dhaka and had been staying at his native village Amirabad, Fairdpur which is far from the Dhaka city. Thus, significance of proving mens rea loses relevance, as an element.
134. It is not alleged that accused himself directly participated in the actual commission of the crimes alleged. In alternative, he has been charged for aiding or abetting or having complicity to the crimes committed. That is to say, the accused had acted as a ‘secondary perpetrator’ or ‘accomplice’. In such case the acts of assistance and providing encouragement and moral support to the principals is to be presumed from relevant facts and acts of accused either before or at the time of commission of crime or even after the commission thereof.
135. The mens rea of the accused for abetting or aiding need not be explicit, it may be inferred from the circumstances. Indeed, as mens rea is a state of mind, its proof is typically a matter of inference. The standard of proof dictates, of course, that it be the only reasonable inference from the evidence and relevant and surrounding circumstances. In the case in our hand, we are to perceive that the accused acted having ‘awareness’ coupled with his conscious decision to accompany the principals to the crime site.
136. However, in light of above observations and settled jurisprudence the matter of mens rea or knowledge or intent may be well determined while adjudicating the charges independently.