This is the sixth part of the judgment given by the tribunal on the trial of Ghulam Azam. This part deals with issues relating to 'command responsiblity'. [Please note that some Bangla text is not included but will be added when translated. It is indicated by XXX]
To see part one - dealing with introductory issues
To see part two - dealing with charges relating to conspiracy and planning
To see part three - dealing with charge relating to incitement
To see part one - dealing with introductory issues
To see part two - dealing with charges relating to conspiracy and planning
To see part three - dealing with charge relating to incitement
To see part four - dealing with charge relating to complicity
A Theoretical Discourse on Command Responsibility and Civilian’s Superior Responsibility:
308. It is an agreed position that the present case is a unique of its kind before the International Crimes Tribunal, Bangladesh as it involves complex legal question as to civilian’s superior responsibility, command responsibility and other intricate legal issues that are unusual and unbeknown to this case to settle the legal interpretation/position of these almost alien legal principles. We cannot be oblivious of the fact that the whole nation has been waiting for what this Tribunal opines regarding these issues. We are also concerned of the legal system of Bangladesh. We are vested with this arduous and glorious task to understand and explain these complex legal issues in the context of our country and of the Act itself. The jurisprudence with that regard in our country is still in its embryonic stage. 196 Hence, we took this opportunity in the fact that the international community is also curious to see how this got any civilian superior responsibility as has been charged for, it is important to explain elaborately what doctrine of command responsibility is, what is civilian superior responsibility and what elements are to be fulfilled to hold a person responsible for the acts of his subordinates. Tribunal resolves and allocate responsibility of the atrocities that took place in 1971 in the territory of Bangladesh.
Command Responsibility in general:
309. Often, the repeated and systematic occurrence of crimes in war-time contexts happens to be the result of a criminal policy or plan from the highest echelons exercising command and control over the perpetrators. However, the commission of crimes on a large scale or the systematic violations of the laws of war can also be, on the contrary, the ‘trivial’ consequence of the lack of a clear chain of command and control. Both the exercise of the powers of command and control (in the case of criminal plan or policy), and the failure to exercise them may imply criminal responsibilities upon superiors and commanders in the presence of the specific requirements under international law. “Command responsibility is an umbrella term used in military and international law to cover a variety of ways in which individuals in positions of leadership may be held accountable” (M. Damaska, The shadow side of command responsibility, The American Journal of Comparative Law, 2001, p.455).
310. Under International Law and International Humanitarian Law (IHL) commanders have a duty to ensure that their troops respect that body of law during armed conflict and hostilities. Failure to do so may give rise to liability. A mere “breach of duty,” whereby the commander has not fulfilled the responsibilities expected of his rank, is usually dealt with through disciplinary action. However, where a commander fails to prevent or punish violations of IHL by subordinates, criminal proceedings are likely, and the punishment to be meted out will reflect the gravity and nature of the crime committed by the subordinate ( ICTY Appeals judgment in Celebic’ Case, Case No. IT-96-21-A, 20 February 2001, at 226).
311. From an IHL perspective, it took another thirty years or so to have these principles codified in a convention. By 1977 the doctrine of command responsibility was accepted as customary international law and was codified in the Additional Protocol I to the Geneva Conventions, relating to the International Armed Conflicts. Its status as customary law was confirmed with the explicit inclusion of command responsibility in article 7(3) of the Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY) and article 6(3) of the Statute of the International Criminal Court (ICC). It should be noted that international law recognizes the principle of command responsibility both in international and in internal armed conflict.
Conditions of establishing command responsibility:
312. From the jurisprudence emanating from the international criminal Tribunals, it is generally agreed that four elements must be proven for a 198 person to be held responsible as superior. In general terms, these are: (1)an international crime has been perpetrated by someone other than the accused;(2) there existed a superior-subordinate relationship between the accused and the perpetrator;(3) the accused as a superior knew or had reason to know that the subordinate was about to commit such crimes or had done so; and (4) the accused as a superior failed to take the necessary and reasonable measures to prevent such crimes or punish the perpetrator. ( Prosecutor vs. Oric, ICTY, Case number-IT 03-68-T293).
Superior subordinate relationship:313. Depending on the origin of the command structure (or, the source of authority), the superior subordinate relationship may be established in two independent ways (1) De-jure: if the commander has structural authority over its subordinates and (2) De Facto: if the commander got no lawful or structural authority over the subordinates, but in reality got actual command and influence over the subordinates. How a commander or superior may de facto exercises commands over his subordinates/followers will be elaborately explained in the later part of this judgment.
Development of Command or Superior Responsibility:314. Provably the most famous and controversial case of conviction on the basis of the principle of command responsibility is that of Japanese General Yamashita, who was condemned to death by an American military tribunal because he “unlawfully disregarded and failed to discharge his duty as a 199 commander to control the operations of the members of his command, permitting them to commit the brutal atrocities and other high crimes” (The United Nations War Crimes Commission, Law Reports of Trials War Criminal 1974-48 (Law Reports), vol. IV, p.3 ff). According to W.H. Parks, the most important legacy of the Yamashita trial is to have recognized, with regard to military officers in positions of command, the existence of an affirmative duty to take such steps as are within their power and appropriate to the circumstances to control those under their command for the prevention of violations of the law of war. The doctrine of command responsibility was largely used against Japanese war criminals during the Tokyo trial. In particular, abuses of prisoners were attributed to both civil and military superiors for having failed to prevent them.
315. With regard to the jurisprudence after Second World War, it is interesting to note that for the first time not only military but also civilian authorities were found guilty of war crimes and crimes against humanity committed by underlings. However, the development of civilian’s superior responsibility will be discussed later. The First international instrument that expressly codified command responsibility is article 86(2) of the I Additional Protocol of 1977 to the 1949 Geneva Conventions.
316. Command responsibility was then included in the Draft Code of Crimes against peace and Security of Mankind of 1996 elaborated by the International Law Commission; in its commentary the Commission stated 200 that military commander can be held criminally liable for the unlawful conduct of his subordinates if he contributes directly or indirectly to the commission of a crime by his subordinates and that he “ contributes indirectly to the commission of a crime by his subordinates by failing to prevent or repress the unlawful conduct.”
ICTY and ICTR jurisprudence:
317. The most significant developments regarding this mode of liability were achieved through the extensive jurisprudence of the two International ad hoc Tribunals. Both the statutes of the ICTY and ICTR contain an express provision on superior responsibility in article 7(3) and article 6(3), which states that: “The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superiors of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.”
318. It is undisputed today that superior responsibility extends also to civilian political leaders, as Heads of State or party or Government officials or other civilians holding positions of authority. The trial chamber of the ICTR in Kayishema and Ruzindana (ICTR-95-1-T) judgment holds that…… 201 “The principle of superior responsibility applies not only to military commanders, but also encompasses political leaders and other civilian superiors in positions of authority. The crucial question is not the civilian status of the accused, but the degree of authority he or she exercised over his or her subordinates.”
319. Moreover, not only de-jure but also de-facto commanders and superiors may incur criminal liability under this doctrine. The judges of the ad hoc Tribunals, in fact, consistently found that the mere absence of formal legal authority over the perpetrators of the crimes does not rule out the imposition of superior responsibility on the subject, as long as he exercised effective control over them, in the sense having the material ability to prevent and punish the commission of offences. No doubt, a chain of command or authority and control is a necessary prerequisite to impute superior responsibility. However, according to this jurisprudence, criminal liability can attach to the superior also with regard to acts perpetrated by subjects who are not directly subordinate to him in the chain of command.
Superior responsibility under article 28 of the Rome Statute of the International Criminal Court:
320. Superior responsibility under article 28 of the Rome Statute of the International Criminal Court (ICC) provides for an independent basis for individual liability distinct from the other modes of liability under article 25 of the Statute. According to the wording of article 28, a superior shall be 202 criminally responsible for crimes within the jurisdiction of the Court committed by his subordinates as a result of his failure to exercise properly where he knew or should have known that the crimes were being committed, or about to be committed and he failed to take all necessary and reasonable measures within his power to prevent or repress the crime or to submit the matter to the competent authorities. Command Responsibility of Civilian Superiors:
321. Yael Ronen have rightly pointed out the doctrine of superior responsibility grew out of the military doctrine of command responsibility. By now it has been part of the customary international humanitarian law that the military doctrine of command responsibility is also applicable for the civilian superiors in slightly varied form. Article 87(1), 86(1) and 86(2) of the Additional Protocol I to the Geneva Conventions encompasses the doctrine of superior responsibility. Apparently these provisions are not limited to military superiors only. ICTR Statute Article 6(3) and ICTY Statute Article 7(3) (hereinafter Article 6/7(3) contain a provision resembling Article to 86(2).
322. Both tribunals have interpreted their respective statutes in numerous cases before them and concluded that the responsibility enshrined in their respective statutes were for both military and civilian superiors. For the ICTY, Delalic, Case No. IT-96-21-T, 363, For the ICTR, Prosecutor, v. Bagilishema, Case No. ICTR-95- 1A- T, Judgment, 42 (June.7, 2001). 203 Section 4(2) of the International Crimes Tribunal Act, 1973 Bangladesh, provides that: “4(2). Any commander or superior officer who orders, permits, acquiesces or participates in the commission of any of the crimes specified in section 3 or is connected with any plans and activities involving the commission of such crimes or who fails or omits to discharge his duty to maintain discipline, or to control or supervise the actions of the persons under his command or his subordinates, whereby such persons or subordinates or any of them commit any such crimes, or who fails to take necessary measures to prevent the commission of such crimes, is guilty of such crimes.”
323. Considering the sentence structure and wording of section 4(2) of the ICT Act, 1973 and also the context and intention of the legislators it is for the tribunal to interpret whether section 4(2) of the Act imposes superior responsibility to the civilian superiors. We will explain it in the later part of the judgment.
324. The history of the doctrine of command responsibility dates back to antiquity, but international prosecutions based on the doctrine did not occur until the aftermath of World War. II. Post- World War II jurisprudence was overwhelmingly concerned with superiors in the military. The criminal responsibility of civilians only arose in full force in the ICTY and ICTR. 204
325. Despite the absence of express provisions on superior responsibility in its statute, the International Military Tribunal for the Far East (Tokyo Tribunal) convicted a number of individuals –both military personnel and civilians-on that basis. Count 55 in Tokyo tribunal alleged that the defendants “deliberately and recklessly disregarded their legal duty to take adequate steps to secure the observance and prevent breaches” of the laws of war. Prime Minister Tojo, and Foreign Ministers Hirota and Shgemitsu were convicted on the basis of civilian’s superior responsibility in the Tokyo tribunal. Foreign Ministers Hirota and Shigemitsu were convicted under Count 55 for their failure to adequately act upon reports of war crimes. The Tribunal held that the circumstances made Shigemitsu suspicious that the treatment of the prisoners was not as it should have been, yet he took no adequate steps to investigate the matter.The Tribunal emphasized Shigemitsu’s failure to take adequate steps to investigate the matter “although he, as a member of government, bore overhead responsibility for the welfare of prisoners.” It held both ministers responsible for failing to induce the government to discharge its obligation to ensure the well- being of prisoners-of –war and civilians under its control.
ICTY Case Law:
326. In Prosecutor v. Aleksovski, Case No. IT-95-14/1-T, and in Prosecutor v. Delalic, Case No. IT-96-21-T, the defendants were the de facto commanders of prison camps where combatants and civilians were detained. They were responsible for conditions in the camps, with de facto authority 205 over the officers, guards, and detainees. In both cases, the defendants were held responsible for failing to repress crimes that their subordinates had committed. They were also held directly responsible for other crimes. In a few other cases where civilians were indicted under the principle of superior responsibility, they were all acquitted.
327. The ICTY Trial Chamber found in both the cases of Cordic and Boskosk; that though they were civilian leaders but they did not have effective control over the direct perpetrators of the Crimes and thus both of them were acquitted of their responsibilities as superiors. ICTR Case Law: 328. Jean Paul Akayesu was bourgmestre of Taba. He was indicted for both direct and superior responsibility for crimes against humanity and war crimes committed by the Interahamwe, whom the judgment referred to as “armed local militia.” According to the indictment, Akayesu knew that the crimes were being committed, facilitated them, and encouraged them. The ICTR found that “a superior/subordinate relationship existed between the Accused and the Interahamwe who were at the bureau communal.” The ICTR then noted that there was no allegation in the indictment that the Interahamwe were subordinates of the accused, although the indictment relied on Article 6(3). Accordingly, it acquitted Akayesu of responsibility as a superior ( Prosecutor v. Akayesu, Case No. ICTR-96-4-T).
329. Two other civilian defendants were Serushago and Musema. In the case of Prosecutor v. Serushago, case No.98-39-S, accused Omar Serushago was a defacto leader of the Interahamwe in Gisenyi. The ICTR convicted him under both Articles 6(1) and 6(3) of genocide and crimes against humanity for having ordered the Interahamwe to execute victims. In the case of Prosecutor v. Musema,Case No. ICTR-96-13-A, accused Alfred Musema was the director of the public Gisovu Tea Factory and member of various regional government authorities that addressed socioeconomic and development matters. According to the indictment, at various locations and times, Musema directed armed individuals to attack Tutsis seeking refuge. He also personally attacked and killed persons seeking refuge; committed acts of rape; and encouraged others to capture, rape, and kill Tutsi woman. The ICTR convicted Musema of genocide and crimes against humanity. The Trial Chamber found him responsible under Article 6(1) of the Statute for having ordered and, by his presence and participation, aided and abetted in the crimes. In addition, the Chamber found that Musema incurred superior responsibility under Article 6(3) of the Statute with respect to acts by employees of the Gisovu Tea Factory, whom the Chamber identified as Musema’s subordinates.
330. Ferdinand Nahimana was born in Rwanda in 1950. From 1977 until 1984, he held various posts at the National University of Rwanda. He was also member of the (MRND) political party. In 1990, he was appointed Director of the Rwandan Office of Information and remained in that post 207 until 1992. He and others then initiated the establishment of the Radio Television Libre des Mille Collines (RTLM) radio station, owned largely by members of the MRND party. RTLM started broadcasting in July,1993 and was a popular source of information. Its broadcasts engaged in ethnic stereotyping, branding Tutsis as the enemy and Hutu opposition members as their accomplices. After April 6, 1994, the virulence and the intensity of RTLM broadcasts propagating ethnic hatred and calling for violence increased, and the ICTR found that certain RTLM broadcasts in that period constituted direct and public incitement to genocide. The ICTR found that Nahimana had been a superior of the RTLM staff. It also found that Nahimana knew or had reason to know that his subordinates at RTLM were going to engage in incitement to genocide. For these reasons, it convicted him on superior responsibility grounds for not having taken reasonable and necessary steps to prevent the incitement or punish its perpetrators (Prosecutor vs.Nahimana, Case No. ICTR-99-52-T).
331. The above case references from the ICTY and ICTR show that the doctrine of command responsibility is also applicable to the political leaders and other civilian superiors in position of authority. The crucial question is not the civilian status of the accused but the degree of authority he or she exercised over his or her subordinates. By the adaptation of this civilian superior responsibility in numerous international instrument and through volumes of judgments from international tribunals it has now become part of customary international law that the military doctrine of command 208 responsibility is also applicable to civilians in the form of civilian superior responsibility.
XXI. A CIVILIAN SUPERIOR NEED NOT TO BE THE OFFICIAL SUPERIOR OF THE PERPRETATORS RATHER A DE FACTO COMMAND OVER THE PERPERTRATORS IS ENOUGH TO HOLD SOMEONE RESPONSIBLE:
332. For a person to be regarded as a superior, he must have a position of command (in a military context) or authority a more general term, applicable in both military and civilian settings. Subsequent jurisprudence appears to have dropped two elements of the Celebici interpretation. The first is the relevance of de facto authority to quasi-state structure as a substitute for de jure authority in true-state structure. The other is the requirement of hierarchy or rank. Nonetheless, the ICTY has on numerous occasions such as in Prosecutor v. Delalic, Prosecutor v. Oric, Prosecutor v. Kordic, Prosecutor v. Kayishema indicated that where the influence reaches the level of “effective control,” it may also fulfill, of replace, the requirement of de facto authority. For example, in Aleksovski, the trial chamber said that “[effective] authority can be inferred from the accused’s ability to give [the direct perpetrators] orders and to punish them in the event of violations.” Similarly, in Musema, the ICTR held that “a superior’s authority may be merely de facto, deriving from his influence or his indirect power.” It added that “[t] he influence at issue…. Often appears in the form of psychological pressure.” In both cases, influence went to the issue of authority rather than to that of effective control.
333. In the case of Prosecutor v. Nahimana, Case No. ICTR-99-52-T, The ICTR accepted as fact that Nahimana held no official function at TRLM.208. This led to the question of whether he had exercised de facto authority. The tribunal answered this in the affirmative, relying on several factors. First, the ICTR found that Nanimana was “the brain behind the project” and “the boss who gave orders.” This description referred to Nahimana’s status in RTLM prior to the commission of the crimes. It expressly noted that Nahimana’s membership in the RTLM’s Steering Committee had not vested him with de jure authority but did suggest “defacto a certain general authority within RTLM.” Nahimana had played a role of primary importance in the creation of RTLM in 1993 and had control over RTLM company finances. Moreover, Nahimansa’s de facto authority was largely a substitute for the Steering Committee’s de jure authority. Thus, although RTLM was a private organization rather than a state organ, the ICTR could rely on the “trappings” of de jure authority. The ICTR’s conclusions on Nahimana’s superior responsibility are thus straightforward and raise no particular difficulties to hold that de facto authority over the actual perpetrators is enough to hold someone responsible for the crime committed by his subordinates. The knowledge requirements: military commanders vs. other superiors.
334. Traditionally, the extent and nature of the “knowledge” required of a superior regarding the actions of subordinates was the same for both military commanders and civilian superiors, irrespective of office held for both categories of superiors to attract liability, it had be shown that the superior either knew or had reason to know. Interestingly, the Rome Statute of the International Criminal Court (ICC), in its Article 28, advances two separate standards. For military commanders, the test remains that the person either knew or, owing to the circumstances at the time, should have known that the forces under his or her command were committing or about to commit such crimes. They should have known is not dissimilar to the traditional had reason to know. By contrast, for other superiors- that is no-military commanders- to incur liability, it must be shown that the person either knew, or consciously disregarded information that clearly indicated that the subordinates were committing or about to commit such crimes. This approach was followed in the ICTR’s Kayishema &Ruzindana case.
335. The ICC Statute thus introduces additional elements that must be met to establish that a non- military superior had the requisite mens rea to be held liable through command responsibility. It must be shown not only that the superior had information in his possession regarding acts of his subordinates, but that the superior consciously disregarded such information, in other words, that he chose not to consider or act upon it. The information must also clearly indicates that the subordinates committed or were about to commit the crimes. To some extent this goes further than the majority standard elaborated by the ICTR or the ICTY by which the information need merely put the superior on notice of possible unlawful acts by his subordinates. An element of certainty rather than possibility vis-à-vis the commission of the crimes will therefore have to be met under the ICC Statute for non-military superiors. However this can not be said to be the part of customary international law.
336. By contrast, the International Crimes Tribunal Act, 1973 in its section 4(2) doesn’t require the commander or superior to have knowledge or had reason to know that his/ her subordinates were committing such crimes or about to commit such crimes. The prosecution may argue that since the law itself is silent about the knowledge requirements, the Tribunal can not import an additional element of knowledge to hold a superior responsible for the acts of his subordinates. However, the tribunal thinks that it would be highly repugnant to common sense and natural justice to hold some one responsible for the crimes committed by his subordinates which was unbeknown to him. The crux of the doctrine of superior responsibility (be it civilian’s or be it military) is that the superior has a specific duty to maintain/ ensure that his/her subordinates respect the body of International Laws. Deviations from this responsibility may incur criminal liability upon the superiors. The liability to maintain the subordinates in line with the prescription of law of the liability to punish the violations of it arises only if the superiors have knowledge or have reason to know that such crimes were committed or were about to commit.
337. Section 4(2) of the ICT Act, 1973 provides that any commander or superior officer, who orders, permits, acquiesces or participates in the commission of any of the crimes specified in section 3 or is connected with any plans and activities involving the commission of such crimes or who fails or omits to discharge his duty to maintain discipline, or to control or supervise the actions of the persons under his command or his subordinates, whereby such persons or subordinates or any of them commit any such crimes, or who fails to take necessary measures to prevent the commission of such crimes, is guilty of such crimes.
338. Apparently section 4(2) is silent about the knowledge part of the superiors. But this tribunal thinks that the “Judges of the common law shall supply the omission of the legislatures.” The tribunal is quite competent to import an additional element of knowledge to hold the superior responsible for the crimes committed by his subordinates if it is found that not doing so would frustrate the ends of justice and doing so would be conforming to natural justice and customary international laws.
339. However, we have to bring it in our mind that knowledge is an abstract thing and there can not be any concrete proof or evidence to show that a particular thing was within someone’s knowledge. Hence the Tribunal has to infer the knowledge of the accused from the facts, circumstances and from the context of the case. Especially if the Tribunal has to examine constructively as to whether the accused had reason to know of a particular fact, it has to infer it from the facts, circumstances and the context of the case. The burden is more upon the Tribunal to infer than on the prosecution to produce evidence specifically, as the knowledge requirement was primarily not mentioned in section 4(2) of the ICT Act, 1973 explicitly. This Tribunal will evaluate the produced evidence to conclude whether the accused knew or had reason to know that his subordinates were committing or were about to commit crimes mentioned in section 3(2) of the Act in due course of time.
Heavier sentences for superiors:
340. International humanitarian law and international criminal justice place upon superiors a greater responsibility than that of their subordinates in ensuring that the law is not violated. Superiors, by virtue of their elevated position in the hierarchy, have an affirmative duty to ensure that IHL is duly respected and that breaches are appropriately repressed. Their failure to do so can be interpreted as acquiescence in the unlawful acts of their subordinates, thereby encouraging further breaches and developing a culture of impunity. Courts have taken into account the “command position” of an accused in sentencing. Whilst recognizing that the length of a sentence is to be determined on the basis of the nature and gravity of the crime, case law of the international criminal tribunals seems to dictate that the status as a superior will in itself be considered an aggravating factor.
341. A command position may justify a harsher sentence, in particular if the accused held a high position within the civilian or military command structure. In Prosecutor v. Jean Kamabanda, Case No.ICTR 97-23-S, and in Prosecutor v. Jean Paul Akayesu, Case No. ICTR -96-4-T, The Tribunals have explained that when a commander fails in his duty to prevent the crime or to punish the perpetrator thereof, he should receive a heavier sentence than the subordinates who committed the crime. The justification in imposing a harsher sentence stems from the fact that where a commander fails to punish his subordinates for committing crimes or to prevent them from doing so, this creates an impression of tolerance, acquiescence or even approval vis-à-vis the actions of the subordinates. The Tribunals have concluded that it would be inconsistent to punish a simple perpetrator with a sentence equal to or greater than that of the commander.In the case of Prosecutor v. Tihomir Blaskic, Judgment, Case No. IT-95-14-T, the Tribunal observed that: “Therefore, when a commander fails in his duty to prevent the crime or to punish the perpetrator thereof he should receive a heavier sentence than the subordinates who committed the crime insofar as the failing conveys some tolerance or even approval on the part of the commander towards the commission of crimes by his subordinates and thus contributes to encouraging the commission of new crimes. It would no in fact be consistent to punish a simple perpetrator with a sentence equal or greater to that of the commander.”
342. As such, the consequences of a person’s acts are necessarily more serious if he is at the apex of a military or political hierarchy and uses his position to commit crimes. Because he is a leader, his conduct is that much more reprehensible. In the case of Prosecutor v. Clement Kayisheme &Obed Ruzindana, Sentence, Case No. ICTR-95-1-T the tribunal opined that : “This Chamber finds as an aggravating circumstance that Kayihema, as Prefect, held a position of authority. This chamber finds that Kayishema was a leader in the genocide in Kibuye Prefecture and this abuse of power and betrayal of his office constitutes the most significant aggravating circumstance.”
343. The case law points to a simple conclusion, namely that civilian and military commanders are deserving of harsher sentences than their subordinates. The mere fact of being in a position of responsibility will be seen as an aggravating factor. In Blaskic case the Tribunal observed:- “Command position must therefore systematically increase the sentence or at least lead the Trial Chamber to give less weight to the mitigating circumstances, independently of the issue of the form of participation in the crime.” If all elements are fulfilled, the superiors are liable to be awarded heavier sentences even than that of the actual perpetrators. The scope of section 4(2) of the International Crimes (Tribunals) Act 1973: Is section 4(2) applicable to civilian superiors as well?
344. It has been settled well that the International Crimes (Tribunals) Act 1973 is applicable to civilians as well. Now, the question as to whether section 4(2) of the Act encompasses a civilian superior and gives the Tribunal jurisdiction to hold a civilian superior responsible for the crimes committed by his subordinates is yet to be resolved categorically.
345. It was mentioned earlier that the doctrine of command responsibility is also applicable to the political leaders and other civilian superiors in position of authority. The crucial question is not the civilian status of the accused but the degree of authority he or she exercised over his or her subordinates. It is also a settled position of law that civilian superior responsibility has now become a part of customary international law. So the question as to whether there is scope to hold a civilian superior responsible under section 4(2) of the Act should have not been arisen at all. But the defence emphatically argued that the wording and the sentencing pattern of section 4(2) of the Act is quite dissimilar to that of article 6(3) of the ICTR statute, article 7(3) of the ICTY statute and article 28 of the Rome statute of the ICC. The defence continued to argue that the use of the word “Superior officer” instead of ‘Superior’ in section 4(2) of the Act bear a clear indication of the intention of the legislators that section 4(2) was meant for military commander only. To substantiate their argument the defence referred to the resembling article 6(3) of the ICTR statute, article 7(3) of the ICTY statute, article 28 of the Rome statute and numerous domestic legislation where the word ‘officer’ was shown and defined to indicate only military personnel or person holding government office.
346. Both the ICTR and the ICTY statute used only superiors instead of superior officer unlike section 4(2) of the ICT Act, 1973.Both the ICTY and ICTR interpreted the term superior to encompass military and civilian superiors. Article 28 of the Rome statute also provides that: a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by his subordinates as a result of his failure to exercise control properly where he knew or should have known that the crimes were being committed, or about to be committed, and he failed to take all necessary reasonable measures within his power to prevent or repress the crime or to submit the matter to the competent authorities. Thus it is shown that none of the above three statutes used the tem superior officer. Rather they used the term superior to include civilian superiors.
347. So the term superior officer used in section 4(2) of the Act deserves an interpretation and explanation by this Tribunal. What is the significance of this word “officer”? Section 4(2) of the ICT Act, 1973 provides that: “Any commander or superior officer who orders, permits, acquiesces or participates in the commission of any of the crimes specified in section 3 or is connected with any plans and activities involving the commission of such crimes or who fails or omits to discharge his duty to maintain discipline, or to control or supervise the actions of the persons under his command or his subordinates, whereby such person or subordinates or any of them commit any such crimes, or who fails to take necessary measures to prevent the commission of such crimes, is guilty of such crimes.”
348. To interpret section 4(2), we have to bear in mind that the cardinal principle of interpretation is that a provision of a statute is not be construed in isolation; a statute must be construed as a whole in its proper context. Generally speaking, the context with reference to a provision of statute consists of the preamble, the prior state of the law, the provision of other statutes in pari material on the same matter, the evil that the provision is meant to cure or remedy and the other provision of the said statute which together throw light on the meaning of the provision intended by the legislature. So, when a question arises as to the meaning of any provision of a statute it should be construed reading the statute as a whole so that all the provision of the statute can be operative and no part of it becomes superfluous (World Tel Bangladesh Ltd vs. Bangladesh 58 DLR 14, Janab Ali vs. State 12 DLR 808).
349. Now, if we read the International Crimes (Tribunals) Act 1973 as a whole, and in special section 4(2) and section 5(2) together, we will see that the words superior officer used in section 4(2) have been used in isolation of the rest of the statute bearing no special meaning to indicate military officers only. Section 5(2) provides: that the fact that the accused acted pursuant to his domestic law or to order of his government or of a superior shall not free him from responsibility but may be considered in mitigation of punishment if the tribunal deems that justice so requires. What is noteworthy is unlike section 4(2), section 5(2) does not use the word Officer. If the intention of the legislators was to supply emphasis on the word Officer in section 4(2) for a special meaning there must have been a reiteration of the word officer in section 5(2) as well. The word Officer was not used in section 5(2) which clearly indicates that the use of the word Officer in section 4(2) is mere incidental having no special significance.
350. Of all the rules of interpretations the paramount rule remains that every statute, even every world of the statute is to be expounded according to its manifest and expressed intention. (For references, see Attorney General for Canada vs, Hallett &Carey ltd, 1952, AC 427). In SA Haroon vs. collector of Custom, the Pakistan Supreme Court observed that: “all rules of interpretation have been devised as aids to the discovery of the legislative intents behind an enactment. Where the words are plain and unambiguous, that intent can best be judged by giving full effect to the ordinary grammatical meaning of those words. But when this is not the case, an attempt should be made to discover the intent by considering the relevant provisions in the context of the whole Act in which it appears an by having regard to the circumstances in which the enactment came to be passed, the previous state of the law, the mischief sought to be suppressed and the new remedy provided are relevant factors to be given due considerations.”(11 DLR, SC, 200).
351. Mr. Imran Siddique, the learned defence counsel submits that the words “Any commander or superior officer” have been used in section 4(2) only to indicate military officer and not indicating any civilian superior, if the legislators had such intention they could have amended section 4(2) by inserting ‘civilian superior’ as amended section 3(1) by inserting “individual of group of individuals” (civilian) in 2009.
352. Let us find out the true meaning of the word Officer used in section 4(2) of the Act, we are to take the whole statute together and construe the said word as a part of the Act. We shall have to interpret the word Officer literally at the first instance, but if we find that as a result of such literal interpretation certain consequence do arise which in result will frustrate the actual intention of the enactment of the Act, we will then inquire the intention of the law makers to see if there is any special significance of that word. We shall have to find the answer from a consideration of the object of the legislation and the mischief it was enacted to remedy. Doing so, we have seen that the Act was not passed to prosecute the military officials only. Section 3(1) of the Act made it clear that this Tribunal got jurisdiction to try and punish any individual or group of individuals irrespective of his/her civilian or military status. Even a plain reading of the introductory speech of the then law minister’s statement in the parliament would suggest that the Act is an open ended legislation so far civilian and military status of the accused is concerned. It is unconceivable to hold that the legislators intended to hold a civilian personally liable for his crimes and reserved superior responsibility for only the military personnel. The intention of the legislation can be found in section 3(1) of the Act which is open ended for both civilian and military persons. So if there exists two alternative interpretations of a word of which one enable the Tribunal to hold a civilian superior responsible for the crimes committed by his subordinates and the other exclude the jurisdiction of the court over civilian superiors, the Tribunal will lean to accept the previous one as it would be in conforming with the intention of the legislation. Thus, if we read section 3(1) and section 4(2) of the Act together, we will see that the word Officer was not meant to be army military officers only. Rather a person who holds an office in civilian capacity in any organization can be called as officer. It will not be irrelevant to mention that the learned counsellors for the litigant parties are also called as the officers of the court. Ameer (Head) of a political party is no doubt a post and the person in that post is certainly holding an office for the purpose of this Act. Hence, the then Ameer of Jamat-e-Islami is a superior officer in its true sense for the persons with whom he had a superior subordinate relationship.
353. In present case, we shall have to consider the established legal principle of customary international law that a civilian superior can be held responsible for the acts of his subordinates. By the adaptation of civilian superior’s responsibility in numerous international instrument and through volumes of judgments from international tribunal it has now become part of customary international law that a civilian superior can be held responsible for the crimes committed by his subordinates. So, if there exists two alternative interpretation of the word Officer used in section 4(2) of the Act of which one is compatible with the customary international law and another does not, the tribunal will accept the previous one. In that point of view, also, the word Officer used in section 4(2) of the Act can not be given any meaning so that it excludes civilian superiors.
354. In conclusion, we have no hesitation to hold that section 4(2) is an open ended section so far military and civilian status of the accused is concerned. We hold that the superior responsibility mentioned in section 4(2) of the Act encompasses civilian superiors as well.
XXII. The status of accused Ghulam Azam 355. From the submissions of the learned lawyers of both the parties as well as from the documents submitted by both the parties, it is an admitted fact that accused Ghulam Azam was the Ameer (Head) of the then East Pakistan Jamaat-e-Islami during 1969 to 1971. It is also undisputed that the accused was a prominent member of the 140-member central peace committee which was also published in the Daily Purbodesh on 11.4.1971 (Ext.101). It is also undisputed that he was a member of the 21-member Executive committee of the said central peace committee and he was also a member of the 6 –member sub-committee of the said Executive committee. Newspaper clippings (Ext. Nos. 41,57,59) corroborate the inclusion of the accused in the said committees.
356. P.W. 1 Moontassir Uddin Khan Mamun alias Moontassir Mamun, Professor of History Dhaka University, P.W.2 Mahabub Uddin Ahmed (Bir Bikrom) and P.W.3 Sultana Kamal, Advocate have categorically testified that during War of Liberation of Bangladesh the accused was the Ameer of Jamaat-e-Islami as well as influential member of central peace committee who played a significant role in forming Militia Bahinis such as Razakar, Al-Badr, Al-shams and peace committees in colloboration with Pakistan occupation forces. D.W.1 Abdullahil Amaan Azmi, the son of accused Ghulam Azam, has admitted that peace committee was formed in 1971 and his father was one of the members of central peace committee. The evidence as to status of the accused lead us to hold that the accused became an indispensable person as well as defacto administrator to run the civil administration of the then East Pakistan by virtue of his civil superior status.
357. Mr. Emran Siddique submits that undisputedly professor Ghulam Azam was the Ameer of Jamaat-e-Islami during War of Liberation but the alleged Militia Bahinis such as Razakar, Al-Badr, Al-shams, etc. were not subordinate organs of Jamaat-e-Islami and the accused had neither knowledge nor control over the activities of those Bahinis and as such accused’s failure to take measure against the alleged perpetrators does not arise at all.
358. Let us examine some citations from nationally and internationally reputed news reportings as well as citations from books written by renouned writers to have a true picture about the role of the accused and Jamaat-e- Islami during the War of Liberation. In this regard some citations are quoted below: “The Jamaat-e-Islami and specially its student wing, Islami Jamaat-e-Talaba (IJT) joined the military’s efforts in May 1971 to launch two para military counter insurgency units. The IJT provided a large number of recruits. The two special brigades of Islamist caderes were named Al-shams (the sun in Arabic) and Al-Badr (the moon). A separate Razakars Directorate was established. Two separate wings called Al-Badr and Alshams were recognized. Well-educated and properly motivated students from the schools and Madrasas were put in Al-Badr wing, where they were trained to undertake specialized operations, where the remainders were grouped together under Al-shams, which was responsible for the protection of bridges, vital points and other areas. Bangladeshi scholors accused the Al-Badr and Al-shams militias of being fanatical. They allegedly acted as the, Pakistan army’s death squads and “exterminated leading left wing professors, journalists, litteratears and even doctors.” Source:- “Pakistan between Mosque And Military” written by Hossain Haqqani, page 79 published in 2005, Washington D.C. USA. 359. Mr. Hossain Haqqani, the author of the book, was a adviser to Pakistani Prime Ministers Ghulam Mostafa Jatoi, Nawaz Sharif and Benzir Bhutto. This book is an authoritative and comprehensive account of the origins of the relationship between Islamist groups and Pakistani army. The above citation testifies that Jamaat-e-Islami had played a substantial role in organising and establishing its notorious wing Al-Badr, the death squad in execution of common policy and plan. Admittedly, the accused was the Ameer of East Pakistan Jamaat-e-Islami and as such it is unbelievable that he had no knowledge about the activities of Al-Badr which acted as an armed squad under Jamaat-e- Islami.
360. Fox Butterfield sent a report which was published in the New York Times on 3 January 1972. Now it is Quoted below:- “Al-Badr is believed to have been the action section of Jamaat-e- Islami carefully organised after the Pakistani crackdown last March”. Source:- Bangladesh documents vol-II page 577.
361. Mr. John Stone House, British Labour M.P. told to PTI in an interview in New Delhi on 20 December 1971 which is quoted below:- “during his visit to Dacca yesterday (December-19) he got the names of these Pakistani Army officers who organised the murders and members of Al-Badr, an extremist Muslim Group, who carried out these heinous crimes just before the surrender of Pakistani forces in Dacca”. Source:- The Hindustan Times, New Delhi, 21 December , 1971 published in Bangladesh documents vol. II.
362. The report titled “Butchery By Al-Badr” was published in the PATRIOT, New Delhi on 23 December 1971 which manifestly demonstrates the role of Jamaat-e-Islami and its armed wing Al-Badr that perpetrated the murder of leading intellectuals, the best sons of the soil. The report speaks that:- “When the Pakistanis were over powered, they left the killing to the fascist Al-Badr, the armed wing of Jamaate- Islami. This fascist body has already butchered about 200 leading intellectuals, doctors, professors, and scientists, including such eminent men like Sahidulla Kaiser and Munir Chawdhury.” Source:- ‘PATRIOT’ New Delhi 23 December 1971 also published in Bangladesh Documents page 573.
363. Accused Prof. Ghulam Azam, the Ameer of East Pakistan Jamaat-e- Islami delivered a reception speach at a local hotel which was published in the “Daily Pakistan” on 26.09.1971 under the caption:- XXXXX Source:- Dalil Patra (Govt Pub), volume no.VII page-630-631. Same news also published in the Daily Sangram (Ext.22).
364. It appears from the news report mentioned above, that the accused has candidly admitted that Razakar Bahini and peace committes were formed by the people belonging to Jamaat-e-Islami and he also compelled his two subordinate party leaders to join the Cabinet of Ministers. Though the accused did not hold any portfolio of the government of Pakistan, nevertheless, he could make his party men ministers and he also used to send partymen for forming para-military Bahinis to resist independence of Bangladesh. The mode of exercising power leads us to hold that the accused was the defacto civil administrator of East pakistan in 1971. Accused Prof. Ghulam Azam visited Razakar Training Camp stationed at Mohammadpur Physical Traning Centre and addressed the Razakars stressing the need for joining Razakar Bahini, Muzaheed and Police Bahini during the war of liberation of Bangladesh. Source:- Clipping of the Daily Sangram published on 18.09.1971. (Exbt No-19)
365. The above cited news report gives a clear impression about the civilian superior status that the accused held in 1971. The accused gave religious sermon to the trainee Razakars which indicates that the accused had defacto superior responsibility over the Razakars though he was not designated officer of the department concerned. Accused Prof. Ghulam Azam as chief of the East Pakistan Jamat-e- Islami made a joint statement urging upon the patrotic people of Pakistan to destroy the Indian intruders on sight. The above report was published in the “Dainik Azad” on 08.04.1971. Source:- The clipping of the daily Azad published on 08.04.1971. (Exbt No-36).
366. The above news reporting gives an impression to hold that the accused had administrative authority to direct the people including his subordinates to wipe out Indian intruders i.e. pro-liberation people of Bangladesh.
367. The investigation officer seized a coupon of subscription with other documents fom Bangladesh National Museum, Dhaka on 20.04.2011 under a seizure list. (Ext. No-498). It appears from the said coupon (Ext. No-505) that Jamaet-e-Islami used to collect subscription by using the cupon under the signature of accused Prof. Ghulam Azam for the purpose of protecting Pakistan’s ideology.This document (coupon No-505) testified itself that the accused was one of the defacto rulers of Pakistan, otherwise, a coupon containing the name of accused would not be issued for protection of Pakistan.
368. The Jamaat-e-Islami, a religion based political party and brain child of controversial Islamist thinker Maulana Maududi was significantly pro-active in its mission to destroy the Bangalee nation in the name of safeguarding Pakistan in collaboration with the Pakistan occupation army. We deem it indispensible to get a scenario on the role and stand of the Jamaat-e-Islami in 1971, particularly when it established various militia Bahinis, namely Peace Committee, Razakars, Al-Badrs, Al-shams and Al-Mujaheed, etc. in association with Pakistan Army.
369. The vital role of Jamaat-e-Islami in creating the para-Militia Bahinis is also reflected from the narrative of the book titled “ Sunset at Midday” which is cited below: “To face the situation, the Razakar Bahini consisting of pro- Pakistani elements was formed. Al-Badr Bahini was formed mainly with the workers of the student wing of Jamaat-e-Islami, named Islami Chhatra Sangha (I.C.S. now Islami Chhatra Shibir). The general public belonging to Jamaat-e- Islami, Muslim League, Nizame- Islami, etc were called Al-shams and the urdu speaking generally known as Biharis were called Al-Mujaheed.” Source:- ‘Sunset at Midday’, written by Mohiuddin Chowdhury a former leader of peace committee of Noakhali District, published in 1998, Karachi Pakistan.
370. The documentory evidence discussed above, bear a testimony that the accused being head of Jamate-e-Islami, exercised his superior power in forming Militia Bahinis namely, Peace Committee, Razakars, Al-badrs and Al-Shams by the members of Jamaat-e-Islami and its student wing Islami Chhatra Shangha. It is also evident, as a religious leader, he had command and control over the members of those Militia Bahinies. It is further evident on record that Pakistan occupation army in collaboration with the said Militia Bahinis launched attacks on unarmed civilian and killed millions of Banglees. On the contrary, the defence could not produce any document to show that the accused as a head of political party ever asked his subrodinates not to kill any unarmed civilian or took dicipliniary measure aganist any member of his party or subordinates to prevent him from committing crimes aganist huminaty or genocide during the War of Liberation .
XXIII. Role of Jamaat-e-Islami during independance struggle of Pakistan and Bangladesh.
371. The history of this sub-continent witnesses that while movement for independence of Pakistan was started, the Ameer of Jamaat-e-Islami Maulana Mawdudi opposed the idea of a separate state for Muslims based on two nation theory. Infact, Muslims of Bengal mainly faught for the independence of a separate homeland for Muslims. As soon as Pakistan got its independence in 1947, the Jamaat-e-Islami claimed itself as only Islamic patriotic political party of Pakistan. While people of East Pakistan again started struggle for self determination and independence, the Jamaat-e-Islami as a political party whole heartedly tried to resist independence of Bangladesh in collaborration with Pakistan occupation army. But as soon as Bangladesh got its independence in 1971at the cost of millions of lives then Jamaat-e-Islami claims itself as a true patriotic party of Bangladesh, terming those pro-liberation parties as to be Indian agents.
372. It is an irony to note that during independence of both Pakistan and Bangladesh, Jamaat-e-Islami played a foul role in two great occasions having no contribution to the creation of the said two states. It can be safely observed that Jamaat-e-Islami utterly failed to realise the pulse of the common people in both the historic occasions mentioned above, probably for the lack of its far-sightness caused by fanaticism.
373. It is gathered from facts of common knowledge and evidence on record that under the leadership of accused Prof. Ghulam Azam almost all the members of Jamaat-e-Islami along with its subordinate organs actively opposed the very birth of Bangladesh in 1971 and after 42 years, it is noticed that some of the anti-libeartion people are still staying in the helm of Jamaat-e-Islami as a result young generation belonging to Jamaat-e-Islami are being psychologically reared up and nurtured with anti-liberation sentiment and communal feeling which is a matter of great anxiety for a nation. There is no proof before the nation that those who played antiliberation role in 1971, have ever changed their attitude towards liberation war by expressing repentance or by showing respect to the departed souls of 3 million martyrs.
374. In the interest of establishing a democratic as well as non-communal Bangladesh, we observe that no such anti-liberation people should be allowed to sit in the helm of Executives of the Governernment, social or political parties including government and non-government organisations. We are of the opinion that the Government may take necessary steps to that end for debarring those anti-liberation persons from holding the said superior posts in order to establish a democratic and non-communal country for which millions of people sacrificed their lives during the War of Liberation.
375. Taking the contextual circumstances coupled with documentary evidence into consideration, we are led to observe that Jamaat-e-Islami as a political party under the leadership of accused Prof. Ghulam Azam intentionally functioned as a ‘Criminal Organisation’ especially during the War of Liberation of Bangladesh in 1971.
376. It transpires from the foregoing discussions made above and citations mentioned under the caption ‘The status of accused Ghulam Azam”, that admittedly he was the Ameer (Head) of the then East Pakistan Jamaat-e- Islami during 1969 to 1971. It is also undeniable that the accused was the most infulential member of Central Peace Committee which was formed with intent to resist the independence of the contrary. The news reports of the ‘Daily Sangram’ (Ext. 22) and the “Daily Pakistan” dated 26.09.1971 show that the accused sent his party men to join Razakar Bahini and Peace Committees for combating pro-libeartion people. It is well proved that the accused as Ameer of Jamaat-e-Islami exercised his superior power in forming para Militia Bahinis namely, Peace Committee, Razakars, Al-Badr and Al-Shams by the members of Jamaat-e-Islami and its student wing, Islami Chhatra Sangha. It is also proved by deocumentary evidence that Pakistan occupation army in collaboration with Militia Bahinis launched attacks on unarmed civilians and killed millions of Bangalees during the War of Liberation of Bangladesh.
377. From the facts of common knowledge, we hold that any order or direction given by a religious leader like accused Ghulam Azam was always considered as more powerful than that of an Army General. It is found on evidence that para Militia Bahinis were mostly formed by his subordinates and as such their superior-subordinate relationship was duly established.
378. On the contrary, the defence could not produce any document to show that the accused as Ameer of Jamaat-e-Islami ever asked his subordinates not to kill any unarmed civilian nor he took disciplinary measure aganist any member of Jamaat-e-Islami or its subordinates to prevent them from committing crimes aganist humanity or genocide during the War of Liberation. Thus, we hold that the accused as civilian superior is criminally liable under section 4(2) of the Act for the crimes committed by his subordinates as he failed to prevent them from committing atrocities in all over Bangladesh.
379. In the above context, Ms. Tureen Afroz, the learned prosecutor argued that during 1971, accused Prof. Ghulam Azam functioned as the “light house”of atrocities and the rays of such mountainous atrocities quickly spread out all over Bangladesh through his subordinates. In our opinion, the above comment is not unfounded one.
380. Mr.Imran Siddique, the learned counsel for the defence submits that the prosecution could not examine any eye witness to prove the charges brought against the accused and the alleged news reports are the product of hearsay and as such do not carry any probative value for relying upon it.
381. Ms. Tureen Afroz, the learned prosecutor submits that the news reports submitted by the prosecution are more than thirty years old documents and those were reported in the Dailies before begining any litigation, as such those documents bear probative value to rely upon. In support of her contention, she referred to a decision in the case of Trustee of German Township (1953) where the U.S. Court of Appeal (Ohio) admitted an old community newspaper as part of record. The Court of Appeal in the same case held the newspaper admissible because “ it is necessary and trustworthy, relevant and material”.
382. It is undisputed that the provision of secition 19(1) of the Act empowers this Tribunal to admit news report published in news papers and other materials in evidence if it deems to have probative value. Therefore, we hold that news report based on hearsay evidence is to be weighed in the context of its credibility. Keeping this legal position in mind, we are of the opinion that the news reports as old evidence carry significant probative value which tends us to hold that accused Prof. Ghulam Azam as civilian superior masterminded all the atrocities committed in the soil of Bangladesh through his subordinates in 1971, and we are convinced to hold that accused Prof. Ghulam Azam was the pivot of crimes and all the atrocities revolved round him during the War of Liberation. It is also proved beyond reasonable doubt that accused Ghulam Azam had complicity with the perpetrators in making planning, conspiracy and incitement which resulted massive atrocities in Bangladesh during the War of Liberation.
383. Mr. Imran Siddique the learned defence counsel forcefully submits that the Exhibit documents of prosecution show that the term miscreants, rebels, separatists,enemies, anti-state elements and intruders were used in 1971 to refer freedom fighters only who were neither protected group nor stable in character to become a group as required under Genocide Convention as well as under section 3(2)(c) of the Act of 1973 and as such the charge of planning and incitement to commit genocide does not hold good against the accused.
384. We have already addressed the submission in foregoing discussions. However, we reiterate the same issue that in the night following 25 March, 1971 the Pakistan army launched war with intent to destroy targeting Banglee nation as a whole or in part and subsequently the Pakistan army along with its collaborators attacked upon unarmed civilians targeting Hindu Community as a religious group with intent to destroy the said group. It is evident that Bangalee nation as well as Hindu Community as religious group both are protected groups as required under Genocide Convention and also under section 3(2)(c) of ICT Act of 1973. As such the defence’s submission as to alleged absence of protected group during the War of Liberation is not sustainable in law.
385. Accused Prof. Ghulam Azam as a defacto superior acted in such a manner which tends us to hold that his prime object was to annihilate the Bangalee nation in the name of protecting Pakistan. The accused was the head of East Pakistan Jamaat-e-Islami, but that stand did not give him licence to form Militia Bahinis with intent to attack upon unarmed civilians 238 which resulted offences of genocide and crimes against humanity through out the country in 1971.
386. On scrutiny of the evidence on record, we have found that the prosecution has successfully proved the status of accused Prof. Ghulam Azam that he had superior responsibility over his subordinates but he failed to prevent them from committing atrocities as contemplated in section 4(2) which substantially aided and contributed to the commission of crimes against humanity, genocide and other class crimes as specified in section 3(2) of the Act during the War of Liberation in 1971.We are convinced to hold that prosecution has proved all the broad charges (five charges) brought against the accused beyond reasonable doubt.