Monday, January 28, 2013

Foreign Minister statement to diplomats on Azad

Dipu Moni - Bangladesh's
foreign minister
On Thursday, 24 January 2013 following the conviction of Abul Kalam Azad, foreign diplomats in Dhaka were called by the foreign ministry to hear a statement from the foreign minister Dipu Moni where they were also shown video of footage of the aftermath of some 1971 atrocities.

Here is the full version of the statement, taken from the document handed out to diplomats.



Opening Statement by Hon'ble Foreign Minister at the Diplomatic Briefing on the Maiden ICT Judgment at 18hOO on Thursday, 24 January 2013

Excellencies, Heads of international organisations, Members of the Diplomatic corps,

Dear friends and colleagues, I thank you most sincerely for your presence here this evening. This week our nation witnessed a historic moment with the passing of the maiden judgment by the International Crimes Tribunal. I felt I should brief you about the judgment and the Government's perspectives on the overall process.

As you are already aware, on 21 January 2013, the International Crimes Tribunal-2 of the International Crimes Tribunal of Bangladesh (ICT-BD) delivered its judgment in the case of 'The Chief Prosecutor Vs Abul Kalam Azad Bacchu (Absconding)(ICT-BD Case No. 05 of 2012), and found the accused 'guilty of the offences of Crimes Against Humanity and Genocide' and convicted and sentenced him to death under section 20(2) of the International Crimes Tribunal Act of 1973 (ICTA).

The verdict was given after the Tribunal found the accused guilty of 'abduction, confinement and torture, murder, rape and genocide (killing the members of the Hindu community)' as listed in charges 1,3,4,5,6,7,8 of the case. The Tribunal further ruled that since the convicted has been absconding, the sentence of death as awarded would be executed after his arrest or upon his surrender to the Tribunal, whichever is earlier.

The judgment confirmed that the convicted committed the crimes he had been charged with in his capacity as a member of the "Razakar", an auxiliary force created in 1971 through official gazette notification with the purpose of committing atrocities against the Bengali population, particularly targeting pro-liberation intellectuals and members of the Hindu community. The convicted is currently not affiliated with any political organisation and is reportedly the Chairman of an NGO called 'Masjid 1 Council'. The Tribunal has concluded that he had deliberately absconded, and also left the country to evade the process of justice, which further vindicated his culpability.

By way of background, it may be helpful to recall that the ICT-BD, a national Tribunal of Bangladesh, was constituted in March 2010 (Tribunal 1) and March 2012 (Tribunal 2), as per law, as independent, open and transparent Court. The Tribunals have the jurisdiction to try the commission or attempt, abetment or conspiracy to commit crimes against humanity such as murder, rape, torture etc., crimes against peace, genocide, war crimes, violation of humanitarian rules applicable in armed conflicts as enshrined in the Geneva Conventions of 1949 and any other crimes under international law.

The ongoing trials of the accused persons are being conducted in open tribunals witnessed by the relatives of the accused, the media and independent observers to ensure full transparency to meet the requirements of fair trial in compliance with the standards invoked in other trials of international crimes committed around the globe and historically. The trial proceedings are being observed and monitored by the prosecutors and defense counsels and the accused persons through separate computer monitors set up for them in the court rooms. The Rules of Procedure of the Tribunals ensure due process and provide guarantee of all internationally recognized human rights standards for the accused as well as protection measures for victims and witnesses. The recent judgment provides a fairly comprehensive account of the relevant provisions of ICTA and its Rules that are in consonance with the International Covenant on Civil and Political Rights in particular.

The Judges of the Tribunals are fully independent in their conduct and have maintained utmost neutrality and transparency. Recently, the Chairman of Tribunal-1 resigned and the Tribunals were reconstituted according to law. According to the provision of ICTA, the proceedings of the cases are continuing in the aftermath of such reconstitution. The accused persons had the right to engage one or more counsels who should be enrolled as legal practitioners of the Bangladesh Bar Council. In case of absentia trial, the Tribunals have the authority to engage a State Counsel as per section 2 12 of ICTA. This has indeed been the case with the case that has just been disposed of, where the accused has been absconding. In case of another accused, there has been the unprecedented instance of the defence counsel cross-examining a prosecution witness for long 45 days. With the conviction of the first of the 14 presentiy accused, the Tribunals currently have 11 cases under trial, with two cases at the final stage.

I think I should reiterate here that the ICTBD, is a domestic tribunal with a mandate to try internationally defined crimes under the ICTA with a view to bringing to justice the perpetrators of one of the most heinous genocides and crimes against humanity of the 20'h century, committed on the soil of Bangladesh in 1971. It needs to be darified that this justice process was never part of any intervention by the international community, nor a result of any international compromise, unlike most justice initiatives of its kind that have taken place in the international arena. The justice process that this Act envisaged setting up is pureiy a domestic process. This means, the International Crimes Tribunals in Bangladesh is not 'international' in nature, but for all meaning and purposes they are 'domestic'. The only international element in the whole scheme of things is the nature of the offences, that is, the "international crimes". Aithough these crimes, due to their nature and trajectory of developments, have historically been a part of international criminal law, the ICTA internalized these crimes and thus made them a part of the jurisprudence of the Tribunal and of Bangladesh's legal system. It, in fact, should be seen as internalization of international law in Bangladesh's domestic legal order, which was done pursuant to Bangladesh's internationai obligations to deal with international crimes and ensure justice to millions of victims of crimes committed in 1971.

Coming back to the recently-delivered judgment itself, we see it as a dear vindication of our Government's commitment to build a secular, democratic polity that cherishes its multi-religious, multi-ethnic and multicultural characters. The crimes committed by the convicted, apart from being of heinous criminal nature, amounted to an affront to these values that this nation had embraced as the hallmark of its freedom struggle.

Secondly, the detailed background information provided by the judgment, particularly about the convicted, makes it abundantly dear that there has been no political motive behind holding these trials, as has often been wrongly perceived and projected by certain sections of the international community and media. The prosecution account of the cases pending before the Tribunals would make it clear that none of the accused has been brought to trial considering their political involvement or affiliation with any political party. The only reference point for the prosecution had been the crimes alleged to have been committed by them during the War of Liberation in 1971, and not their political affiliation or orientation at the time of the commission of the crimes or later.

Thirdly, it sends out a strong message that Bangladesh has now evolved as a society where there would not be any space for the culture of impunity, or what I often refer to as the "horrors of impunity". The Tribunal, in its judgment, has reaffirmed that no person guilty of committing such atrocious crimes, as have been proved beyond doubt against the convicted, should stay outside the reach or purview of justice as it tends to give validity to the culture of impunity, and that prolonged impunity and related denial of truths allow "old wounds to fester and make the victims suffer post-traumatic stress".

I would invite you to imagine what a post-war Europe would be like without trials for warJ)Ycrimes, genocide and crimes against humanity, and the perpetrators of such crimes allowed to roam around freely amongst the victims and their families or assume State power. In Bangladesh's case, due to the deliberate and prolonged impunity that had been allowed by the State to those responsible for the crimes - since the killing of the Father of the Nation Bangabandhu Sheikh Mujibur Rahman on 15 August 1975 - a deep, raw wound has been inflicted in our national conscience and psyche, which I believe is somewhat responsible for the ruptures we witness at times in our socio-political fabric. Our Government has been making unstinting efforts to heal these long-festering wounds and to mend the fissures in our political culture and socio-cultural values. This is a difficult exercise no doubt, but the Party that helped this nation achieve its independence must also undertake the challenging task of building it on a firm footing so that no forces can deviate it from its course and slow down the process of the political and economic emancipation of its people that we had all fought for. 

Amendment to post
The previous comment section has been removed

Azad Judgment analysis 2: Tribunal assumptions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This issue is discussed at some length here

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

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

Part three: coming soon

Saturday, January 26, 2013

Azad judgement analysis 1; 'in-absentia' trials and defense inadequacy

Abdus Shukur Khan, the state defense
lawyer appointed by the tribunal to
defend Abul Kalam Azad 
This is the first of a number of posts considering the adequacy of the Abul Kalam Azad trial and judgement.

It is notable that the conviction and sentencing to death of Abul Kalam Azad has been widely supported by many of the great and the good in the country's political establishment and civil society - as reflected for example by the emotional comments in the signed editorial written by the editor of the Bangladesh newspaper, the Daily Star who mused that the conviction has brought 'an indescribable joy in our heart today and an inexpressible reason to celebrate' as well as comments published in the paper by others.

Whist the atrocities of 1971 quite understandably sear deep and the need for an accountability process are obvious, it continues to surprise me how the current tribunal process, now so mired in controversy, continues to gain such unalloyed support from those otherwise sensitive to injustices within the criminal justice system in Bangladesh (on this issue generally, see this and this)

Why controversy? If anyone has read the full Skype conversations and e-mail correspondence (summarized by the Economist) between Justice Nizamul Huq and the expatriate Bangladesh lawyer Ziauddin Ahmed, there is evidence of collusion between the prosecution, the tribunal and government ministers - at a level which appears to preclude the possibility of independent and fair trials. In the Sayedee case (which I have followed particularly closely) prosecutors have lied to the tribunal about prosecution witnesses (with the tribunal taking no action) and the tribunal has seriously curtailed the number of defense witnesses, refused to issue summons to ensure that key witnesses came to court, and taken near to no action after a defense witness was abducted from outside the tribunal gates. And Sayedee's trial is not alone in experiencing some of these problems.

No doubt these same people will remain unimpressed by any criticisms made of the Kalam Azad trial and judgement - so tone deaf are they to such comments - and dismiss and ignore them, as they have done before.

Nonetheless it is important to continue to put on the record these concerns - and in relation to the Azad trial and judgement there are many.

This first analysis of the Azad trial/judgment looks at the question of 'in absentia' trials and whether or not there was an adequate defense give to Azad (who had apparently absconded as soon as he heard that he was about to be arrested).

It summary this analysis argues that, (a) in contradiction to what is stated in the judgement, there is no international legal support for the kind of in absentia trial that took place with Azad; and (b) linked to this, the defense to Azad provided by the state defense lawyer (who by-the-by - in an interview admitted that he is a supporter of the governing party, the Awami League, and used to be a member of its student wing) was seriously defective.

1. In absentia trials
The trial of Kalam Azad was held in absentia - meaning that  he was was not present during the trial.

The legitimacy of holding an in absentia trial was raised by Abdus Shukur Khan, the defense lawyer appointed by the tribunal (much more about the lawyer later)

The judgement says that one of the 'pertinent legal issues' raised by the defense lawyer was that the:
'trial in absence of accused is not valid, particularly in prosecution and trying an individual on allegation of committing internationally recognized crimes) (para 40)
The Azad judgement answers this by pointing to the UN supported Special Trial for Lebanon, as well as the jurisprudence (case law) of the European Court of Human Rights and that of the Human Rights Committee (in relation to the International Convention on Civil and Political Rights).

However the judgement does so inaccurately - such that arguably, it should have come to rather different conclusions.

Para 50 of the judgement states:
United Nations reversed its policy against trials in absentia with the Special Tribunal for Lebanon (STL or Lebanon Tribunal) in 2006. The STL allows trials "to commence and to end............ without an accused ever having showed up in court. The STL (Special Tribunal for Lebanon) expressly allows for trials in the absence of the accused in article 22 of the STL Statute, entitled "Trials in absentia." Article 22(1), lists the situations where the STL can hold trials in the accused absence.
However, the judgement (conveniently) fails to mention Article 22(3) of the Special Tribunal for Lebanon statute which allows trials in absentia (including in the circumstances of this case where the accused is absconding) only on the basis that an accused person has the right to seek a retrial in their presence if they do return to the court's jurisdiction. The article states:
In case of conviction in absentia, the accused, if he or she had not designated a defence counsel of his or her choosing, shall have the right to be retried in his or her presence before the Special Tribunal, unless he or she accepts the judgement.
In relation to the European Court on Human Rights (ECHR), the Azad judgement states at para 53 that:

The jurisprudence of both the ICCPR and the ECHR confirms that a trial in absentia will not violate a person's right to be present when he has expressly declined to exercise this right.
However, the Eurporean Court of Human Rights jurisprudence in fact only allows in absentia trials in the same set of circumstances as the Lebanon tribunal when there is a right to a retrial. So in the case of Krombach (para 85) it was held:
It is true that proceedings that take place in the accused’s absence will not of themselves be incompatible with the Convention if the accused may subsequently obtain, from a court which has heard him, a fresh determination of the merits of the charge 
So, it is first of all important to note that the Bangladesh tribunal is the only international/UN sponsored court/national court dealing with international criminal offenses which allows in absentia trials without a right of retrial. 

There will be many who will say that since the Bangladesh International Crimes Tribunal is a national tribunal it does not matter what other courts do or say. Putting to one side for the moment the legitimacy of that argument, what is significant is that the Azad judgement does in fact try to justify its in absentia process by reference to the Lebanon tribunal  and the ECHR jurisprudence; the Bangladesh tribunal does accept that at least in relation to the issue of 'in absentia', international standards do apply. 

And the Azad tribunal judgment is inaccurate in suggesting that the Lebanon tribunal and the ECHR supports the legality of its in absentia process.

However, what about the ICCPR? The ICCPR case law does not state explicitly that a right to retrial is required, however what it does do is place particular emphasis on the need for courts to provide significant defense rights when in absentia trials take place. General Comment No. 13, para 11 states that:
“[t]he accused or his lawyer must have the right to act diligently and fearlessly in pursuing all available defenses and the right to challenge the conduct of the case if they believe it to be unfair. When exceptionally for justified reasons trials in absentia are held, strict observance of the rights of the defense is all the more necessary.” (emphasis added)
It is important to note that all this applies in the circumstances in which the trial of Azad took place - where the accused has deliberately escaped prosecution.

Para 26 of Azad's judgment states that: 
'Thus, this Tribunal has the ability to hold trials in absentia in such a way as to refrain from violating human rights norms guaranteed by the International Covenant on Civil and Political Rights (ICCPR) and other agreements.'
The next question therefore is whether or not the tribunal ensured that Azad had a sufficient defense. 

2. Time to prepare
On 7 October, the tribunal appointed the lawyer Abdus Shuker Khan as state defense lawyer to defend Azad. According to para 21 of the judgement, four days later, on 11 October later Khan received (as required by the International Crimes (Tribunal) Act 1973) copies of the formal charge and the documents which the prosecution intended to rely on including the statements of prosecution witnesses.

Ten days later on 21 October, the tribunal started hearing the application to charge-frame (indict) the accused, and on 4 November, the tribunal passed its order of indictment framing 8 charges against Azad
[To read witness testimony, cross examination and judgement click here

Three weeks later, on 26 November, the trial started with the prosecution bringing to court 22 witnesses. Over a period of 13 days finishing on 22 December 2012, these witnesses gave their evidence and were subject to cross examination by Azad's defense lawyer. The defense lawyer was then required to bring any defense witnesses to testify on behalf of Azad to the tribunal.

So: the defense lawyer had only ten days to prepare himself to challenge the charges proposed by the prosecution (in the charge framing hearings). Then following the order of indictment (when he came to know exactly what charges his client was facing) only a further 22 days to (a) prepare his cross examination of the prosecution witnesses, (b) admit as evidence any documentary information and (c) obtain his defense witnesses in relation to 8 charges - 7 of which involved crimes against humanity and one which was a crime of genocide - all of which potentially could result in a death penalty. [One should note of course that all these offenses are international criminal offenses which is an area of law that has its own separate jurisprudence.]

Did the tribunal provide the lawyer sufficient time to prepare? 

Providing only three weeks to prepare the case does in fact comply with section 9(3) of the 1973 Act, which requires that there be a minimum time of three weeks between the time the defense lawyer receives copies of the prosecution evidence and the date of thee trial.

In addition, the lawyer himself told me in an interview that he had no complaints about the time provided to him to complete his preparation. 'Yes, I had enough time. Three weeks is sufficient between charge framing and witness testimony,' he said. And he did not challenge this before the tribunal or seek an adjournment.

However, it is pretty clear from any objective or common sense position - at least from an international standards position - that the time period is totally inadequate for any lawyer to properly prepare for a trial of this kind. It is an almost ridiculous short length of time.

However, to appreciate why the lawyer (and the tribunal) considered this period was sufficient, one needs to consider this state defense lawyer's level of preparation, and how defense lawyers generally Bangladesh operate.

3. The lawyer's preparation
My interview with the lawyer confirmed what any reading of the witness testimony in fact suggests; he undertook no investigations or inquiries on behalf of his client. Indeed, he told me that his preparation was simply based 'on the papers provided by the prosecution'.

The lawyer justified this by saying that the son of his client told him that he did not wish to assist. 'After I was appointed, I went to Azad's house,' he said. 'I met his younger son, Zahid Azad, and spoke to him and invited him to provide any supporting documents, and invited him to come as defence witness, but the man replied that we have nothing to do with this case.'

It was the lawyer's view that since the family was not providing any cooperation there was no further inquiries he should make on behalf of his client.

When I asked him whether he had gone to any of the 'crime scenes' - all of them in Faridpur, he replied that he had not. Why I asked did he not go to Faridpur? 'It was not possible to go to to Faridpur, as the family did not help. I am not familier with Faridpur district,' he replied.

When pushed on this, he said, 'I intended to go and visit, and ask for assistance from the accused family and because the family did not assist, I could not go.'

I asked him why he only sought assistance from the family, since there may be many other people, perhaps BNP or Jamaat supporters or others who would be willing to assist. I also asked him whether he recognized that his client was Azad, not his family.

He explained that he did not think 'as defence state counsel I need to investigate. The law does not require it.' He explained that is was customary in Bangladesh to defend simply by scrutinising 'the statement of defense witnesses'.

When I mentioned that the lawyers representing the other accused, (i.e those representing the leaders of the Jamaat-e-Islami) appear to be undertaking extensive defense investigations, he said that 'those lawyers are assisted by accused relatives and supporters, but no one is assisting me.'

Since the defense lawyer did not undertake any defense investigations, it is hardly suprising that he was not able to bring to the tribunal a single defense witness, or submit a single document or indeed properly question or challenge any of the claims of prosecution witnesses on the basis of any knowledge that came from outside the prosecution papers that had been provided to him. 

This raises the question: Is simply relying on prosecution papers sufficient preparation for a lawyer? In failing to undertake any defense investigations, was the lawyer failing to give his client a proper defense?

4. Adequacy of the legal representation.
In Bangladesh terms, if one considers the general practice of lawyers dealing with most criminal defense cases, the answer to the above question may well be 'yes'. It is common practice for most criminal defense lawyers in Bangladesh to simply prepare their cases on the papers provided by the investigation/prosecution, often without having met their clients. Lawyers do not undertake further inquiries or undertake defense investigations. In fact in most criminal cases in Bangaldesh, defense lawyers do not meet their clients outside the court room.

This may well explain why (a) the lawyer acted in the way he did, and (b) the tribunal thought that the preparation and representation provided by the lawyer was adequate. [One should note that the court was of course fully aware of the situation. At the end of the prosecution witnesses, Justice Obaidul Hassan passed an order stating (here summarized) 'Prosecution Witness has been closed today. As per section 9(5) of International Crimes Tribunal Act-1973, Defense Counsel has failed to produce any witness or documents in favor of his client because accused is absconding and his family is not cooperating Defense Counsel to supply any document or witness. In this circumstance, this case has been fixed for argument on 23rd December 2012.' The tribunal seems to be accepting that the non-cooperation of the family this was a justifiable explanation as to why the lawyer had come forward with no defense witnesses, no documents.]

However, by any kind of international standards, the lack of preparation by the lawyer and the nature of the representation would be considered highly inadequate. The lawyer and the tribunal should both themselves have recognized this.

And in considering how adequate defense should be in in absentia trials, one should keep note that the UN Human Rights Committee stated that 'strict observance of the rights of the defense is all the more necessary' in such trials.

5. The appropriateness of the defense counsel
Abdus Shukur Khan, the state defense counsel, told me that he did not know exactly how he was chosen. 'The Dhaka bar association recommended me, but I do not know how. One of my friends informed me that I had been appointed as the state defense, and the chairman [of the tribunal 2] asked me to meet him. After the interview I was appointed.'

He said that he knew nothing about international criminal law but was able to read about it in the time he was the lawyer.

Perhaps most significantly, in the context of his trial, Khan confirmed that he had been a member of the Chattro League (the governing party, the Awami League's student wing), and that he continued to be a 'supporter' of the Awami League, though he insisted he was not a member.

In the context of the tribal and highly partisan nature of Bangladesh politics, the need to ensure that the tribunal was independent and that Azad would have a lawyer who would properly protect his interests, it seems particularly inappropriate to have hired a lawyer to represent Azad who had, as he had admitted, strong Awami League links.


Azad analysis 2: 'Common knowledge and assumptions'

Thursday, January 24, 2013

Abul Kalam Azad trial - index of proceedings

On 22 January 2013, Abul Kalam Azad was convicted of one offense of genocide and six offenses of crimes against humanity in an absentia trial

The court sentenced him to death.

Below are the links to the pages dealing with the charges, the witnesses and the judgement concerning the trial of Abul Kalam Azad.


Charges
4 November 2012: Charge-framing order

Witnesses
26 November 2012: Prosecution Witness 1 and 2

27 November 2012: Prosecution witnesses 3, 4 and 5

28 November 2012: Prosecution witnesses 6 and 7

3 December 2012:   Prosecution witnesses 8, 9 and 10

4 December 2012:   Prosecution witnesses 11 and 12

5 December 2012:   Prosecution witness 13 and 14

6 December 2012:   Prosecution witness 15

9 December 2012:   Prosecution witnesses 16 and 17

11 December 2012: Prosecution witness 18

12 December 2012: Prosecution witness 19 and 20

17 December 2012: Prosecution witness 21 (seizure list witness

18 December 2012: Prosecution witness 22 (investigation officer)

19 December 2012: Prosecution witness 22, continued

Prosecution evidence completed. Defence presents no witness or documents.

Closing arguments
23 December 2012: Prosecution closing argument, day 1

24 December 2012: Prosecution closing argument day 2

24 December 2012: Defence closing argument

Judgment
22 January 2013:     Judgement

Analysis of Judgment
Coming soon ....

22 Jan 2012: Azad judgment part 1, introduction

This is part one of the Judgement of Tribunal in the case of Abul Kalam Azad dealing with introductory issues.

I. Opening words
In the judicial history of Bangladesh, it is indeed the historic occasion that today this Tribunal (ICT-2), a lawfully constituted domestic judicial forum, after dealing with the matter of prosecution and trial of internationally recognized crimes i.e. crimes against humanity, genocide which were perpetrated in 1971 in the territory of Bangladesh, during the War of Liberation is going to deliver its first verdict. At all stages of proceedings the prosecution and the defence have made laudable efforts extending their precious arguments on academic and legal aspects including citation of the evolved jurisprudence. It inevitably has inspired us to address the legal issues closely involved in the case, together with the factual aspects as well. We take the privilege to appreciate their significant endeavor.

In delivering the verdict we have deemed it necessary in highlighting some issues, in addition to legal and factual aspects, relating to historical and contextual background, characterization of crimes, commencement of proceedings, procedural history reflecting the entire proceedings, charges framed, in brief, and the laws applicable to the case for the purpose of determining culpability of the accused. Next, together with the factual aspects we have made effort to address the legal issues involved and then discuss and evaluate evidence adduced in relation to charges independently and finally have penned our finding on culpability of accused.

Now, having regard to section 10(1) (j), section 20(1) and section 20(2) of the International Crimes (Tribunals) Act, 1973[Act No. XIX of 1973] this ‘Tribunal’ known as International Crimes Tribunal-2 (ICT-2) hereby renders and pronouncing the following judgment.

II. Commencement of proceedings
1. The Chief Prosecutor, on the basis of the report and documents submitted therewith by the Investigation Agency, after completion of investigation, submitted the ‘Formal Charge’ on 02.9.2012 under section 9(1) of the Act of 1973[hereinafter referred to as the ‘Act of 1973’] before this Tribunal alleging that the accused Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu as a significant member of Razaker, the auxiliary force and also as an ‘individual’, had committed the offences of crimes against humanity, genocide including the offence of providing contribution and moral support to the accomplishment of such crimes in different places of Faridpur district during the period of War of Liberation in 1971 and thereby proceedings commenced.

2. Thereafter, the Tribunal, under Rule 29(1) of the Rules of Procedure[hereinafter referred to as ‘ROP’], took cognizance of offences as mentioned in section 3(2) (a)(b)(g)(h) of the Act of 1973 and issued warrant of arrest for causing appearance of the accused as required under Rule 30 of the ROP. But the warrant could not be executed as the accused remained absconded. Thereafter, in compliance of legal requirement for holding trial in absentia by appointing state defence counsel to defend the absconded accused, the Tribunal on hearing both sides on charge framing matter framed 08 charges against the accused Abul Kalam Azad @ Bachchu by its order dated 04 November 2012 and thus the trial commenced.

III. Historical Background
3. Atrocious and horrendous crimes were committed during the nine- month-long war of liberation, which resulted in the birth of Bangladesh, an independent state. Some three million people were killed, nearly quarter million women were raped and over 10 million people were forced to flee to India to escape brutal persecution at home, during the nine-month battle and struggle of Bangalee nation. The perpetrators of the crimes could not be brought to book, and this left a deep wound on the country's political psyche and the whole nation. The impunity they enjoyed held back political stability, saw the ascend of militancy, and destroyed the nation's Constitution.

4. A well-known researcher on genocide, R.J. Rummel, in his book Statistics of Democide: Genocide and Mass Murder Since 1900, states:  “In East Pakistan [General Agha Mohammed Yahya Khan and his top generals] also planned to murder its Bengali intellectual, cultural, and political elite. They also planned to indiscriminately murder hundreds of thousands of its Hindus and drive the rest into India. And they planned to destroy its economic base to insure that it would be subordinate to West Pakistan for at least a generation to come.”

5. Women were tortured, raped and killed. With the help of its local collaborators, the Pakistan military kept numerous Bengali women as sex slaves inside their camps and cantonments. Susan Brownmiller, who conducted a detailed study, has estimated the number of raped women at over 400,000.
[Source: http://bangladeshwatchdog1.wordpress.com/razakars/]

6. In August, 1947, the partition of British India based on two-nation theory, gave birth to two new states, one a secular state named India and the other the Islamic Republic of Pakistan. The western zone was eventually named West Pakistan and the eastern zone was named East Pakistan, which is now Bangladesh.
7. In 1952 the Pakistani authorities attempted to impose ‘Urdu’ as the only State language of Pakistan ignoring Bangla, the language of the majority population of Pakistan. The people of the then East Pakistan started movement to get Bangla recognized as a state language thus marking the beginning of language movement that eventually turned to the movement for greater autonomy and self-determination and eventually independence.

8. In the general election of 1970, the Awami League under the leadership of Bangabandhu Sheikh Mujibur Rahman became the majority party of Pakistan. Despite this overwhelming majority, Pakistan Government did not hand over power to the leader of the majority party as democratic norms required. As a result, movement started in this part of Pakistan and Bangabandhu Sheikh Mujibur Rahman in his historic speech of 7th March, 1971, called on the people of Bangladesh to strive for independence if people’s verdict is not respected and power is not handed over to the leader of the majority party. In the early hour of 26th March, following the onslaught of “Operation Search Light” by the Pakistani Military on 25th March, Bangabandhu declared Bangladesh independent immediately before he was arrested by the Pakistani authorities.

9. The massacres started with program called “Operation Searchlight,” which was designed to disarm and liquidate Bengali policemen, soldiers and military officers, to arrest and kill nationalist Bengali politicians, soldiers and military officers, to arrest and kill and round up professionals, intellectuals, and students (Siddiq 1997 and Safiullah 1989). Actions in concert with its local collaborator militias , Razakar, Al-badar and Jamat E Islami (JEI) were intended to stamp out Bengali national liberation movement and to crush the national feelings and aspirations of the Bengalis.

10.In the War of Liberation that ensued, all people of East Pakistan wholeheartedly supported and participated in the call to free Bangladesh but a small number of Bangalees, Biharis, other pro-Pakistanis, as well as members of a number of different religion-based political parties, particularly Jamat E Islami (JEI) and its student wing Islami Chatra Sangha (ICS) joined and/or collaborated with the Pakistan military to actively oppose the creation of independent Bangladesh and most of them committed and facilitated the commission of atrocities in violation of customary international law in the territory of Bangladesh. As a result, 3 million (thirty lac) people were killed, near about quarter million women were raped, about 10 million (one crore) people deported to India as refugees and million others were internally displaced. It also experienced unprecedented destruction of properties all over Bangladesh.

11.The Pakistan government and the military setup number of auxiliary forces such as the Razakars, the Al-Badar, the Al-Shams, the Peace Committee etc, essentially to collaborate with the military in identifying and eliminating all those who were perceived to be sympathized with the liberation of Bangladesh, individuals belonging to minority religious groups especially the Hindus, political groups belonging to Awami League and other pro-Independence political parties, Bangalee intellectuals and civilian population of Bangladesh. Jamat E Islami (JEI), as an organization, substantially contributed in creating these para- militias forces (auxiliary force) for combating the unarmed Bangalee civilians, in the name of protecting Pakistan. Undeniably the road to freedom for the people of Bangladesh was arduous and torturous, smeared with blood, toil and sacrifices. In the contemporary world history, perhaps no nation paid as dearly as the Bangalees did for their emancipation.

IV. Brief account of the accused
12.Accused Moulana Abul Kalam Azad @ Bachchu son of late Abdus Salam Mia & late Magfura Khatun of village-Barakhardia (Choi ani), Police Station- Saltha, District-Faridpur at present sector no. 07, road no. 33, house no. 06, Police Station–Uttara, DMP, Dhaka and ‘Azad Villa’, 279/6 Chan Para, Uttarkhan, Dhaka was born on 05.03.1947 in village ‘Barakhardia’. He studied in Faridpur Rajendra College and was a close associate of Ali Ahsan Mohammad Mujahid, the then President of East Pakistan Islami Chatra Sangha (ICS). Till formal formation of Razaker force, Moulana Abul Kalam Azad @ Bachchu actively aided the Pakistani army as an armed member of volunteer Razakar Force formed in Faridpur in committing criminal acts alleged. He, during the war of liberation in 1971, assisted the Pakistani occupation force initially in the capacity of ‘Razaker’ and subsequently as chief of Al-Badar bahini of Faridpur. At one time, Moulana Abul Kalam Azad @ Bachchu was ‘rokan’ of jamat-E-Islami and now he is not associated with any political party. He is the chairman of ‘Masjid Council, a non government organization [NGO]. He could speak in Urdu well as he studied in ‘madrasa’. On 21 April, 1971 he being united with the local anti liberation circle welcomed the Pakistani army in Faridpur district. He was a close associate of Pakistani army and actively and substantially assisted them as a potential member of Razakar (Volunteer) force in committing atrocities targeting the civilians and Hindu community and pro-liberation Bangalee people. In Faridpur, he was in charge of Razaker bahini which was equipped with rifles.

V. Introductory Words
13.International Crimes (Tribunals) Act, 1973 (the Act XIX of 1973)[hereinafter referred to as ‘the Act of 197’] is an ex-post facto domestic legislation enacted in 1973 and after significant updating the ICTA 1973 through amendment in 2009, the present government has constituted the Tribunal ( 1st Tribunal) on 25 March 2010 . The 2nd Tribunal has been set up on 22 March 2012. The degree of fairness as has been contemplated in the Act and the Rules of Procedure (ROP) formulated by the Tribunals under the powers conferred in section 22 of the principal Act are to be assessed with reference to the national needs such as, the long denial of justice to the victims of the atrocities committed during 1971 independence war and the nation as a whole.

14.There should be no ambiguity that even under retrospective legislation (Act XIX enacted in 1973) initiation to prosecute crimes against humanity, genocide and system crimes committed in violation of customary international law is quite permitted. It is to be noted that the ICTY, ICTR and SCSL the judicial bodies backed by the UN have been constituted under their respective retrospective Statutes. Only the ICC is founded on prospective Statute.

15.Bangladesh Government is a signatory to and has ratified the ICCPR, along with its Optional Protocol. It is necessary to state that the provisions of the ICTA 1973 [(International Crimes (Tribunals) Act,1973] and the Rules framed there under offer adequate compatibility with the rights of the accused enshrined under Article 14 of the ICCPR. The 1973 Act of Bangladesh has the merit and mechanism of ensuring the standard of safeguards needed universally to be provided to the person accused of crimes against humanity.

16. As state party of UDHR and Geneva Convention Bangladesh cannot evade obligation to ensure and provide justice to victims 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.

VI. Jurisdiction of the Tribunal
17.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 a ‘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 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. Thus, the Tribunals set up under the Act of 1973 are absolutely domestic Tribunal but meant to try internationally recognised crimes committed in violation of customary international law.

VII. Procedural History
18.At pre-trial stage, the Investigation Agency constituted under section 8(1) of the Act of 1973, through the Chief Prosecutor prayed for causing arrest of the accused Abul Kalam Azad @ Bachchu by filing an application on 25 March 2012, for effective and proper investigation [Rule 9(1) of the ROP]. The Tribunal directed to submit a progress report about the task of investigation and fixed 03 April 2012 for hearing and disposal of the application. On having the progress report as mentioned the Tribunal on hearing application issued warrant of arrest against the accused. But the enforcement agency of the Dhaka Metropolitan Police could not execute it as the accused Abul Kalam Azad @ Bachchu, on sensing the matter of issuance of warrant of arrest had absconded.

19. However, finally, the Chief Prosecutor, on the basis of the report and documents submitted therewith by the Investigation Agency, after completion of investigation, submitted the ‘Formal Charge’ on 02.09.2012 under section 9(1) of the Act of 1973 before this Tribunal alleging that the accused as a potential member of Razaker force in Faridpur, the auxiliary force and also as an ‘individual’ had committed the offences of crimes against humanity, genocide including the offence of providing substantial contribution, assistance and moral support to the Pakistani army to the accomplishment of such horrific crimes in different places of Faridpur district during the period of War of Liberation in 1971 and thereby proceedings commenced. Thereafter, the Tribunal, under Rule 29(1) of the Rules of procedure, took cognizance of offences as mentioned in section 3(2) (a)(b)(g)(h) of the Act of 1973 and issued warrant of arrest for causing appearance of the accused as required under Rule 30 of the ROP.

20. Dhaka Metropolitan Police (DMP) submitted the execution report before the Tribunal stating that the accused Abul Kalam Azad @ Bachchu could not be arrested as he has already absconded and he is learnt to have left the country instantly before the earlier warrant for arrest issued by this Tribunal. In this circumstance, the Tribunal, as required under Rule 31 of the ROP, ordered to publish a notice in two daily news papers, one in Bangla and another in English asking the accused to appear before this Tribunal within ten (10) days from the date of publication of such notice. Accordingly, the notice has been published on 25 October issue of ‘The Daily Janakantha’ (Bengali daily) and ‘The Daily Star’ (English daily). But despite publication of such notice the accused has not appeared before this Tribunal.

21.On 07 October , the Tribunal has observed in its order that there have been reasons to believe that the accused has absconded or has concealed himself so that he cannot be arrested and produced before the Tribunal and there is no immediate prospect for arresting him, and as such it ordered that the trial against the accused shall be held in his abesntia under section 10A(1) of the International Crimes (Tribunals) Act 1973 (as amended up-to-date) together with the Rule 32 of the ROP and accordingly it appointed Mr. Abdus Shukur Khan, Advocate, Bangladesh Supreme Court, as state defence counsel to defend the absconded accused who will have remuneration to be determined by the Tribunal [Section 10A(2) of the Act] . Tribunal also directed the prosecution to submit copy of formal charge and the documents which it intends to rely upon by 11 October for supplying the same to the appointed state defence counsel. On 11 October, the state defence counsel informed the Tribunal that he received the copy of formal charge, statement of witnesses and documents submitted therewith from the office of the Registrar. Thereafter, the Tribunal fixed 21 October for hearing the charge matter. After hearing both sides, the Tribunal framed eight (08) independent charges including the charge of crimes against humanity and genocide against the accused Abul Kalam Azad @ Bachchu by its order dated 04 November 2012.

VIII. Applicable laws
22. The proceedings before the Tribunal shall be guided by the International Crimes (Tribunals) Act 1973, the Rules of Procedure 2012 (ROP) formulated by the Tribunal under the powers given in section 22 of the Act. Section 23 of the Act of 1973 prohibits the applicability of the Code of Criminal Procedure, 1898 and the Evidence Act 1872. Tribunal is authorized to take into its judicial notice of fact of common knowledge which is not needed to be proved by adducing evidence [Section 19(4) of the Act]. The Tribunal may admit any evidence [Section 19(1) of the Act]. The Tribunal shall have discretion to consider hearsay evidence too by weighing its probative value [Rule 56(2)]. The defence shall have liberty to cross-examine prosecution witness on his credibility and to take contradiction of the evidence given by him [Rule 53(ii)]. Cross-examination is significant in confronting evidence, even in case of holding absentia trial. The Act provides right of accused to cross- examine the prosecution witnesses. The Tribunal may receive in evidence statement of witness recorded by Magistrate or Investigation Officer only when the witness who has subsequently died or whose attendance cannot be procured without an amount of delay or expense which the Tribunal considers unreasonable [Section 19(2) of the Act]. But in the case in hand no such statement of witness has been received, although the prosecution by filing an application has prayed to receive statement of four witnesses made to the Investigation Officer. The defence shall have right to cross-examine prosecution witnesses. Accordingly the state defence counsel duly cross-examined all the prosecution witnesses.

23.The Act provides provision of holding trial in abesntia [section 10A] after due compliance of necessary legal requirement as contemplated in the Act and the ROP.

24.Both the Act and the Rules (ROP) have adequately ensured the universally recognised rights of the defence. Additionally, the Tribunal, in exercise of its discretion and inherent powers as contained in Rule 46A of the ROP, has adopted numerous practices for ensuring fair trial by providing all possible rights of the accused. The Tribunal however is not precluded even from seeking guidance from international reference and relevant jurisprudence, if needed to resolve any crucial and relevant issue revealed in course of proceedings.

IX. Right to Disclosure
25. Article 9(2) ICCPR contains-“Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.” This provision seems to have been reflected compatibly in the Rule (3) of ICT-BD ROP that provides-“At the time of executing the warrant of arrest under sub-rule (2) or later on, copy of allegations is to be served upon such person.” But it could not be complied with, in the instant case, as the accused Abul Kalam Azda @ Bachchu remained absconded and finally, pursuant to execution report of the warrant of arrest, he fled away from country.

26.Further, Rule 18 (4) of ICT-BD ROP provides “The Chief prosecutor shall file extra copies of formal charge and copies of other documents for supplying the same to the accused(s) which the prosecution intends to rely upon in support of such charges so that the accused can prepare his defence.” For the reason of absconsion of accused the Tribunal, after necessary procedural formalities as required under the ROP, ordered for holding absentia trial by appointing Mr. Abdus Shukur Khan, Advocate, Bangladesh Supreme Court as state defence counsel to defend the absconded accused and it also ordered to submit copies of the formal charge, statement of witnesses and documents which the prosecution intends to rely upon for supplying the same to the state defence counsel for preparation of defence. Thus, this Tribunal has the ability to hold trials in absentia in such a way as to refrain from violating human rights norms guaranteed by the International Covenant on Civil and Political Rights (ICCPR) and other agreements.

27.Therefore, right to disclosure and adequate opportunity to prepare defence have been adequately ensured so that the appointed state defence counsel can have due opportunity to defend the interest of absconded accused Abul Kalam Azad @ Bachchu keeping consonance with the Article 9(2) and 14(3)(a) ICCPR.

X. Witnesses adduced by parties
28.Prosecution adduced and examined in all 22 witnesses of whom P.W.21 is a seizure witness and P.W.22 is the Investigation Officer. It took 13 working days to complete examination and cross-examination of 22 P.W.s. After closing of P.W.s, the learned state defence counsel informed the Tribunal once again that he would not adduce and examine any witness in support of defence as he could not have been able to submit the list of witnesses, documents as required under section 9(5) of the Act as he failed to have instruction from relatives of the absconded accused, despite contact that he made to them. Accordingly the Tribunal fixed next date for summing up of prosecution case as required under section 10(1)(i) of the Act of 1973. Accordingly the learned Prosecutor Mr. Syed Haider Ali and Mr. Shahidur Rahman have summed up prosecution case and thereafter the learned state defence counsel also presented summing up of defence case by agitating several crucial legal issues.

XI. The way of adjudicating the charges
29.The evidence produced by the prosecution in support of its respective case is mainly testimonial. The Tribunal considered that most of prosecution witnesses directly experienced and witnessed the terrible events they have narrated and that such trauma could have an impact on their testimonies. However, despite this reality, their testimony seems to be invaluable to the Tribunal in its search for the truth on the horrendous and atrocious incidents that happened in 1971 war of liberation in different areas of Faridpur district directing the Bangalee Hindu community, after duly weighing value and credibility of such testimonies. Despite the indisputable atrociousness of the crimes committed during the war of liberation in 1971 by the Pakistani armed force in collaboration with the local perpetrators like accused Abul Kalam Azad @ Bachchu, we require to examine the facts constituting offences alleged in a most dispassionate manner, keeping in mind that the accused is presumed innocent.

30.The incidents took place about 40/41 years back, in 1971 and as such memory of live witnesses may have been faded and as a result discrepancy may have occurred in their version made in court. Such discrepancy is usual. The case before us, as we have already said, depends mostly on narratives of live witnesses who claim to have witnessed the commission of crimes and sustained trauma as well, as sufferer. Their testimony is based on their explicit memories.

31.Therefore, in the case in hand, together with the testimony of prosecution witnesses of whom most are live witnesses, we shall have to depend upon too (i) facts of common knowledge (ii) context of the attack directed against unarmed Hindu civilians (iii) documentary evidence, if any (iv) relevant facts (v) circumstantial evidence (vi) Political status of the accused at the relevant time (vii) link of the accused with the local Pakistani armed force and (viii) the jurisprudence evolved on these issues in the adhoc Tribunals, if it is considered essential to rely upon. In the prosecution of crimes against humanity, principally accused’s status, position, authority, activities, link with the state organization are pertinent issues. In determining culpability of the accused, all these factors have to be addressed and resolved as well.

XII. Burden of the Prosecution
32. The prosecution, in the light of the charges framed, is burdened to prove (a) the commission of crimes narrated in charges (b) mode of participation of the accused in committing the crimes for which he has been charged (c) What was the status and role of the accused at the relevant time and how he had maintained association with the Pakistani army (d) the context of carrying out alleged atrocious crimes directed against civilian population and a particular group of population. In determining culpability of the accused prosecution is to establish too that (1) the perpetrator must know of the broader context in which the act occurs and (2) the act must not have been carried out for purely personal motives of the perpetrator.

XIII. Backdrop and Context
33. 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.

34.As we see in the case in hand, the crimes are alleged to have been committed between the period of May 1971 to July 1971 in furtherance of accomplishment of policy and plan of Pakistani army. Why? What was the role of the accused during this period? What were his activities? How he acted to the accomplishment of crimes alleged? What he did and for whom and in which capacity? Had he link, in any manner, with the Pakistani occupation force or local administration in implementing organizational policy or plan and if so, why?

35.Admittedly , during the period of War of Liberation in 1971 parallel forces e.g Razaker Bahini, Al-Shams, Al-Badar Bahini, , Peace Committee were formed as auxiliary forces of the Pakistani armed force who provided moral supports , assistance and substantially contributed and also physically participated to the commission of horrendous atrocities in the territory of Bangladesh. It is the fact of common knowledge that thousands of incidents happened through out the country as part of organized and planned attack. Target was the pro-liberation Bangalee civilian population, Hindu community, pro-liberation political group, freedom fighters and finally the ‘intellectuals’. We are to search for answers of all these crucial questions which will be of assistance in determining the culpability of the accused for the offences for which he has been charged. The charges against the accused arose from some particular events allegedly constituting the offences of crimes against humanity and genocide, during the War of Liberation in 1971.

XIV. Points to be determined
36. In determining culpability of the accused for the perpetration of offences  with which he has been charged we are to adjudicate the fundamental issues such as (i) Whether the accused was a potential member of Razakar (Volunteer) force at the relevant time (ii) whether the accused was substantially associated with Pakistani army and their activities for facilitating commission of offences (iii) whether the accused physically participated in the commission of crimes alleged and (iv) whether the allegations against the accused constitute a serious case of ‘crimes against humanity’ and ‘genocide’ within the Tribunal’s jurisdiction.

22 Jan 2012: Azad judgment part 2, legal issues

Abul Kalam Azad judgement, Part 2 dealing with legal and certain factual issues


XV. Discussion
37.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] and the reports published in foreign news papers in 1971.

38.Therefore, before we address the above decisive issues we prefer to make a portrayal related to factual aspects. Inevitably this portrayal would lend us a clear depiction as to pattern, extent and nature of atrocities committed during 1971 War of Liberation that may qualify the offences as crimes against humanity as specified in section 3(2)(a) and the offence of genocide as specified in section 3(2) (c)(i) of the Act of 1973.

XVI. Addressing legal issues agitated
39.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.

Argument advanced by the State defence Counsel on legal aspect 
40.Mr. Abdus Shukur Khan, Advocate, Bangladesh Supreme Court and the learned state defence counsel defending the absconded accused Abul Kalam Azad @ Bachchu, in course of summing up case has taken pain in raising some pertinent legal issues. He argued that 40 years delay in prosecuting the accused is not sufficiently explained and such delay creates doubt and fairness of prosecuting the accused; that trial in absence of accused is not valid, particularly in prosecution and trying an individual on allegation of committing internationally recognised crimes; that the phrase ‘individual’ and ‘group of individuals’ have been purposefully incorporated in the Act of 1973 by way of amendment in 2009 and such amendment does not have retrospective effect 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; 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 army; that if the accused was actually prosecuted , tried and punished under the Collaborators Order 1972, now prosecuting him for the same offences is barred by the doctrine of double jeopardy; 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.

Reply of Prosecutor to argument extended by the Defence
41.In reply to these legal contentions, Mr. Syed Haider Ali, the leraned Prosecutor submitted that there is an historical context of delay in bringing the ‘individuals’ to the justice although the legislation enacted in 1973 was prevailing. Step was taken by forming prosecution team composed of four eminent senior counsels for prosecuting the perpetrators of offences specified in the Act of 1973. But after the dark history 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. Democracy remained halted till 1991 and also till 2009 there was no favourable situation, strong political will and consensus to prosecute the offenders under the Act of 1973. This history of common knowledge itself is explanatory for delayed prosecution. Besides, 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 is not a clog in bringing prosecution under the Act of 1973 against ‘auxiliary force ‘ and ‘individual’ or ‘group of individuals’. Besides, the tripartite agreement did not give immunity to listed 195 war criminals belonging to Pakistani occupation army. The agreement was not in consonance with the norms of compelling laws.

42. In respect of definition and elements of crimes against humanity, Mr. Prosecutor submitted that the phrase ‘ directed 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. The ICTY Statute does not contain the ‘systematic or widespread’ requirement. Subsequently, through judicial pronouncements it has been settled jurisprudence of ICTY that the offences of crimes against humanity must have been committed as part of ‘systematic or widespread attack’. 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. The amendment of the Act of 1973 bringing the phrase ‘individual’ or ‘group of individuals’ have to be considered together with the preamble of the Statute and thus it is misconceived to say that merely for the reason of such subsequent amendment to the Act an ‘individual’ cannot be brought under jurisdiction of the Tribunal. As regard trial in absentia, it has been submitted that section 10A of the Act of 1973 provides provision of holding trial in absentia. The accused Abul Kalam Azad @ Bachchu deliberately remained absconding since pre-trial stage to evade the process of justice and as has been reported he has left the country. It signifies that he deliberately did not intend to face the prosecution. Absconsion itself is an incriminating circumstance to be considered together with evidence for determining culpability of the accused.

(i) Does Delay obstruct bringing prosecution under the Act of 1973?
43.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.

44.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.

45.In view of above 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.

46.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).]

47.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 endeavor 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.

48.Crimes against humanity and genocide, the gravest crime never get old and that the perpetrators 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. Therefore, justice delayed is no longer justice denied, particularly when the perpetrators of core international crimes are brought to the process of justice. 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 trying the accused and creates no mystification about the atrocities committed in 1971

(ii) Validity of holding Absentia trial
49.The Act of 1973 provides provision of holding trial in abesntia, if the appearance of the accused could not be ensured for the reason of his absconsion [Section 10A (1) of the Act]. In the international context, the issue of trials in absentia arose with the first modern international criminal tribunal, the International Military Tribunal (IMT) at Nuremberg, which was established to try war criminals operating under the European Axis Powers during World War II. Article 12 of the Charter of the International Military Tribunal allowed for trials in absentia whenever the Tribunal found it necessary to do so in the interest of justice. Famously, Martin Bormann, who served as the Nazi Party secretary, was indicted, tried, and sentenced to death, all in absentia, despite doubts as to whether he had even been informed of the proceedings.

50.United Nations reversed its policy against trials in absentia with the Special Tribunal for Lebanon (STL or Lebanon Tribunal) in 2006. The STL allows trials "to commence and to end............ without an accused ever having showed up in court. The STL (Special Tribunal for Lebanon) expressly allows for trials in the absence of the accused in article 22 of the STL Statute, entitled "Trials in absentia." Article 22(1), lists the situations where the STL can hold trials in the accused absence.

51.According to Professor William Schabas under section 22(1) (c) of the STL Statute, the accused may be tried in absentia when he refuses to appear after an initial appearance (absconded) or is otherwise unable to be found after all reasonable steps have been taken to inform him of the proceedings including media publication and communication with his known state of residence.

52.Accused Abul Kalam Azad @ Bachchu could have due opportunity of being properly informed of the proceedings in advance if the warrant of arrest could have been executed. But by remaining absconded and leaving country the accused has willfully declined to exercise his right to be present for facing trial and as such under this circumstance, trial in his absence would be permissible "in the interest of the proper administration of justice."

53.In the case in our hand, at pre-trial stage, for the purpose of effective investigation this Tribunal ordered for his arrest by issuing warrant and as it appears from the execution report, the accused knowing it preferred to remain absconded, instead of facing proceedings and trial. The accused has not intended to take part in the trial, rather wished to escape prosecution. The jurisprudence of both the ICCPR and the ECHR confirms that a trial in absentia will not violate a person's right to be present when he has expressly declined to exercise this right. The circumstance and the time and way the accused had gone to absconsion and left country led us to lawful inference that the accused has expressly declined to exercise his right to be present in trial.

54.That is to say, despite all reasonable steps taken to inform him of the proceedings including media publication, the accused Abul Kalam Azad @ Bachchu seems to be unwilling to face the trial, as he remained absconded and fled away even from country. It is a patent indicium that the accused, by his conduct, has waived his right to be present, and as such on this score too trial in his absence is quite permissible.

(iii) Incorporating ‘Individual or group of individuals’ to the Act by amendment
55. It is submitted by the learned counsel appearing on behalf of the accused (absconded) that since the subsequent amendment brought in 2009 of the Act of 1973 by inserting the phrases ‘individual’ and ‘group of individuals’ in section 3(1) carries ‘prospective effect’, in reality, the present accused cannot be prosecuted in the capacity of an ‘individual’ for the offences underlying in the Act which is admittedly ‘retrospective’. Since such amendment has not been expressly given retrospective effect interpretation stands that the amendment is prospective. Prosecution could not show that the accused belonged to Razakar force or subsequently Al-Badar Bahini and as such on this score too he cannot be prosecuted under the Act of 1973 by bringing him within the ambit of the phrase ‘individual’.

56.At the out set, before we resolve the issue, 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.

57.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.

58.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.

59. 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.

60.Thus, we hold that the application of prospectiveness or retrospectivity as to amendment to section 3(1) of the Act of 1973 raised by the defence is of no consequence to him 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.

(iv) Tripartite Agreement and immunity to 195 Pakistani war criminals
61.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. 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.

62.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.

63.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.

64.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. Therefore, the argument that since the main responsible persons (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.

(v) The accused could have been prosecuted and tried under the Collaborators Order 1972 and if prosecuted present prosecution for same offences is barred by the doctrine of Doctrine of Double Jeopardy

65.An offence for which the accused could have been convicted on the initial indictment if actually brought against him under the Collaborators Order 1972 does not appear to be same for which the accused has been prosecuted under the Act of 1973. The Tribunal, in determining the issue of double jeopardy, is concerned with offences or crimes as clearly refer to the Act of 1973 and not the Collaborators Order 1972.

66. There has been no proof that the accused was prosecuted and tried under the Collaborators Order 1972. It is not correct to say that the accused could have been prosecuted if actually he had perpetrated any of crimes enumerated in the Act of 1973 for which he has been charged now. Next, if the accused was really prosecuted and tried under the Collaborators Order 1972 the present prosecution under the Act of 1973 cannot be said to be barred by the doctrine of double jeopardy.

67.It is to be tested whether two criminal offences are the same for the purposes of double jeopardy jurisprudence, Lord Morris explained that- what has to be considered is whether the crime or offence charged in the later indictment is the same or is in effect or is substantially the same as the crime charged (or in respect of which there could have been a conviction) in a former indictment and that it is immaterial that the facts under examination or the witnesses being called in the later proceedings are the same as those on some earlier proceedings. [1964] A.C. 1254 at 1306 [H.L.(E.)].

68.Thus, the doctrine of double jeopardy prohibits that the accused should not have been put in peril of conviction for the same criminal offence as that with which he is then prosecuted and punished. First, there is no paper or document before us to show that accused was prosecuted under the Collaborators Order 1972 and the fate of such prosecution.

69.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.

70.In the case in hand, we have found that there are sufficient grounds to presume prima facie that the accused was physically associated with the perpetration of the offences enumerated in the 1973 Act. 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.

(vi) Whether the accused can be prosecuted without prosecuting his accomplices
71.Another question has been agitated by the defence. According to the charges it will reveal that apart from the accused, some other armed Razakars and co-perpetrators accompanied the accused at the crime scene in committing the crimes. But excepting accused, none of his accomplices has been brought to justice. It is true. But that by itself does not make the horrendous episode of atrocities directing the civilian population belonging to Hindu community constituting crimes against humanity and genocide untrue or give any immunity to accused Abul Kalam Azad @ Bachchu. If the accused is found guilty and criminally liable beyond reasonable doubt for his culpable acts, inaction in prosecuting his accomplices cannot be the reason for holding the former innocent or relieved from liability. In this regard we may recall the provision as contained in section 4(1) of the Act of 1973.

(vii) Definition and Elements of Crime
72.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.

73.We are not agreed with the above submission. 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.

74.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.

75.Section 3(2) (a) of the International Crimes (Tribunals) Act, 1973 (as amended in 2009) 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;'

76.It is now settled that the expression ‘directed 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.

77.True, the Rome 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 crime against humanity.

78.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. 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.

79. The section 3(2)(a) of the Act states the 'acts' constituting the offences of crimes against humanity is required to have been ‘directed 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). Conducts constituting ‘Crimes’ directed against ‘civilian population’ thus refers to organized and systemic 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 the1973 Act is visibly baseless.

XVII. Relevant and Decisive Factual Aspects
80. For the purpose of adjudicating the charges, at the out set, the following decisive factual aspects need to be resolved. These aspects relate to the context and status of the accused at the relevant time of perpetration of crimes alleged. To qualify the criminal acts allegedly committed by the accused as the offences of crime against humanity these aspects are essentially needed to be resolved first.

(i) When the Pakistani army rolled into Faridpur Town
81.This factual issue is crucially related to the events of crimes alleged. Because, from the charges framed against the accused it reveals that all the events of alleged atrocities were committed between the period of 14 May to 26 July 1971. The accused Abul Kalam Azad @ Bachchu allegedly in the capacity of Razakar and his accomplices perpetrated all these crimes and charge nos. 1 and 2 demonstrate that the accused used to maintain close and active association with the Pakistani army at different camps set up in Faridpur.

82. On prayer of prosecution, the Tribunal has permitted it to adduce attested photocopy of the East Pakistan Police Abstract of Intelligence [Vol XXV No. 17] dated April 24 1971 and the attested photocopy of the East Pakistan Police Abstract of Intelligence [Vol XXV No. 18] dated May 1 1971, as additional evidence under section 9(4) of the Act of 1973, as it considered those relevant for adjudication of the charges. The documents have been marked as Exhibit- 10 and 11.

83.It is quite evident from evidence of witnesses that the Pakistani army rolled into Faridpur town on 21 April 1971, in furtherance of ‘operation search light’ executed on 25 March 1971 in Dhaka and all the events of atrocities as listed in the charges took place since the entry of Pakistani army into Faridpur town and target of such horrific atrocious acts was mostly the Hindu community. Exhibit 10 and 11 add strength to an unerring inference on these pertinent relevant facts.

84.The East Pakistan Police Abstract of Intelligence [Vol XXV No. 17] dated April 24 1971(Exhibit-10) so far it relates to ‘Faridpur’ in serial 387 speaks as below: “387. Faridpur.—On 21st April, 1971, some deserters from East Bengal Regiment along with some ‘Mukti Fauz’ numbering about 20/25 approached the Deputy Commissioner, Faridpur and the Superintendent of Police, Fairdpur, at the latter’s residence and demanded arms and ammunition and Police Force from them to resist the Pakistan Army who were coming to Faridpur on that day. They refused to fulfill their demands. At this the ‘Mukti Fauz’ and EBR deserters surrounded the residence of the Superintendent of Police when some police personnel who were present there took their position to encounter them. Then the ‘Mukti Fauz’ and EBR deserters left the place, and fled away from Faridpur town just before the arrival of the Army on 21st April 1971.”

85. Thus, it has been conclusively proved that the Pakistan Army rolled into Faridpur town on 21 April 1971 and there was an attempt to resist their entry on part of ‘Mukti Fauz’ and pro-liberation members of (East Bengal Regiment (EBR) (who were treated as deserters). We have also found from testimony of P.W.7, P.W. 15 and P.W. 18 that entry of Pakistan Army into Faridpur town on 21 April 1971 was almost unhindered as the attempted resistance on part of pro-liberation group of Bengali people became futile as they lacked war-arms to encounter. Additionally, Exhibit-10 extends convincing reason to assume the above P.W.s quite credible as well.

86.Next, the East Pakistan Police Abstract of Intelligence [Vol XXV No. 18] dated May 1 1971 (Exhibit-11), so far it relates to ‘Faridpur’ in serial 431 says as follows: “431,Faridpur.—At the instance of the Pakistan democratic Party, Faridpur, a ‘Peace Committee” has been formed on 27th April , 1971, with Mohammad Afzal Husain (PML), Advocate, Faridpur town, as convener and 38 others, as members.” It is thus also established that within week the Pakistani army rolled into Faridpur, local peace committee was formed on 27 April with Mohammad Afzal Husain (PML), Advocate, Faridpur town, as convener and 38 others, as members.

(ii) Formation of Razakar in Faridpur in 1971
In order to get a picture as to the role and status of the accused including his political affiliation during the War of Liberation in 1971, at the out set we need to concentrate to what has been testified by the prosecution witnesses. It would be fairly relevant and indispensable for adjudication of his culpability. It appears that P.W.7 and P.W.15 and P.W.18 have made the portrayal, in this regard.

89.P.W.7 Md. Amir Hossain (60) from village East Khabashpur police station Kotwali district Faridpur, a freedom fighter has testified that on 21 April 1971 the Pakistani troops started rolling towards Faridpur town and the pro-liberation people together with police, Ansar , VDP attempted to resist them at Goalanda Ghat but had failed as they were not equipped with war-weapons. Afterwards, they moved towards Faridpur town where at a place known as ‘Goalchamat’ they found Advocate Afzal Hossain, Alauddin Khan, Khokon, Abul Kalam Azad @ Bachchu (accused) and 300/400 biharis welcoming the Pakistani troops and they started celebrating and chanting.

90.As regard formation of Razakar force in Faridpur, P.W.15 Probodh Kumar Sarker stated that during the first part of the month of May 1971 Razakar force was locally formed in Faridpur. P.W.15, in reply to question elicited in his cross-examination, replied that Abul Kalam Azad @ Bachchu received fire arms operating training possibly at Faridpur stadium. First, it has been established from evidence of most of P.W.s that the Pakistani troops had set up camps at Faridpur stadium and Faridpur circuit house. Second, it is found that at the time of implementing attack directed against civilians, accused Abul Kalam Azad @ Bachchu used to carry a rifle with him. Thirdly, the victims and sufferers of atrocities which were committed during the period of 14 May to 26 July 1971 have unequivocally testified that at that time the accused was known as a Razakar and such testimony could not have been impeached by the defence.

91.P.W.5 Ranjit Kumar Nath, a freedom fighter and a victim of atrocious torture has also stated in cross-examination that accused Bachchu was also involved with the process of formation of Razakar force and subsequently he was the head of Faridpur Al-Badar force. This version remained unshaken.

92.P.W.8 Profulla Kumar Mondol (63). He knew accused Abul Kalam Azad @ Bachchu as he saw him attending meetings in support of Jamat E Islami and he (accused) was a student, junior to him, at Faridpur Rajendra College. This is why P.W.8 knew accused Abul Kalam Azad @ Bachchu. Defence failed to refute its credibility. From this version of P.W.8 it is evident that the accused was affiliated to Jamat E Islami politics.

93.However, P.W.8 who is a natural witness has also stated in his cross- examination, in reply to question put to him by the defence, that he learnt that Razakar force was formed ten-twelve days after the Pakistani troops entered in Faridpur and accused was its commander. Similarly P.W.10 Tushta Kumar Mondol (54) testified the event of crime of killing as listed in charge no.4 incriminating the accused. He however also stated that at that time accused Abul Kalam Azad @ Bachchu was the Razakar Commander. This version as well remained unshaken in his cross- examination.

94.From a report containing information (Exhibit-7: page 150 of the volume of prosecution’s document) about the accused as transmitted to the Special Superintendent of Police, City Special Branch, Dhaka by the Police Super, Faridpur vide its MEMO No. 1782 dated 12.4.2010 goes to show that initially accused Abul Kalam Azad @ Bachchu was a Razakar and was also the head of Faridpur Al-Badar force.

95.It is also found in a report titled “Pakistani Regime Is Preparing For Long Guerrilla War in East” published in the New York Times , July 30 1971 issue (By MALCOLM W. BROWNE) that- “ After brief training the recruit is given a rifle.............................The Government says it has already recruited more than 22,000 Razakars of a planned force of 35,000.”

96.The above report together with the East Pakistan Police Abstract of Intelligence [Vol XXV No. 17] dated April 24 1971(Exhibit-10) has adequately proved that the then Pakistan Government organized the Razakar force in Faridpur instantly after the Pakistani troop rolled into Faridpur in furtherance of ‘operation search light’ on 25 March 1971 to encounter the Bengali nation who started fight for freedom.

97.The Investigation Officer P.W.22 has explained why he could not collect sufficient necessary documents (old evidence) which were kept archived till 1975 in the office of the Deputy Commissioner, Faridpur, during his investigation. Undeniably, state support and co-operation and strong political will are required for the prosecution of perpetrators of internationally recognised system crimes by way of access direct evidence, such as archives or confidential information.

98.The history says, after the gloomy episode of assassination of the father of nation and his family happened on 15 August 1975 the persons and parties in state power started allowing individuals and political organizations which played visibly a notorious and antagonistic role resisting the war of Liberation in 1971 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 and even the privilege of hoisting our pride and heard earned national flag in their houses and vehicles. 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. Thus, the likelihood that by using the passage of time and situation favourable to them the beneficiary quarter has destroyed the relevant documents that might be enough to establish their culpability cannot be brushed aside.

99.However, despite the above challenge, eventually we have got two matters proved. One is entry of Pakistani troops into Faridpur on 21 April 1971 and another is the present accused Abul Kalam Azad @ Bachchu was provided training with a rifle having which with him he allegedly participated the commission of crimes being accompanied by his accomplices and these two facts lend assurance that he was recruited by the Pakistani troops as a potential armed Razakar and at the relevant time he perpetrated crimes in such capacity and subsequently he became the head of Faridpur Al-Badar force. That is to say, at the time of perpetration of alleged horrific crimes alleged his status was a potential Razakar who was also a close affiliate of Pakistani army in Faridpur.

(iv) Conduct of accused relevant to prove his status and association with Pakistani army
100. P.W.7 has stated that the Pakistani troops established their camps at Faridpur stadium, Police line, Ambika memorial hall, Faridpur Rajendra College with the aid of those people i.e. Advocate Afzal Hossain, Alauddin Khan, Khokon, Abul Kalam Azad @ Bachchu (accused). This version remained unshaken.

101. P.W.7 has testified that on the same day i.e on 21 April 1971, accused Bachchu Razaker with the assistance of Pakistani troops and local biharis looted the business concern of Badrilal Ramkrishna Agarwal situated at Chwak Bazar area and had set up his own office on the first floor of the building for administering anti-liberation activities there from. Later on, Bachchu Razaker had occupied the house of one Hiralal Mukhtar situated at Kabi Jasimuddin road where he had set up a training center for Al-badar. Defence could not shake all these pertinent versions.

102. Thus it is proved that the accused aided and substantially contributed in setting up army camps in Faridpur town wherefrom they used to operate their atrocious activities. Next, prosecution has been able to prove the role and conduct of accused who started his atrocious activities from the beginning of entry of Pakistani troops in Faridpur. This is of course a key relevant fact in determining his culpable role and status during the period of commission of offences of which he has been charged. Such conduct and activities of accused amply proves that he was a close accomplice of Pakistani army.

103.P.W.7 stated too that on 27.7.1971 some 7/8 armed Razakars including some biharis apprehended him from a place known as Jessore road at Goalchamat pretending him a freedom fighter and handed him over to Major Koraishi at Faridpur stadium camp. He was kept there confined in a room of the gallery’s ground floor where he found some more detainees. This version could not be dislodged in his cross-examination. That is to say the fact of remaining of P.W.7 confined at the camp is proved.

104.We have found from testimony of P.W7 that at the camp he found Ishaque, Anwar and Mansur of Maheshpur, EPR Hanif Mohammad of Bhanga, Subedar Golam Mostafa and badiuzzaman of Madaripur, Anukul of Khabashpur, Kabir, son of head master of Faridpur high school detained there . P.W.7 stated that he was kept confined there for long one month and during the period of his confinement he also saw bringing Khalil, Badal, Kislu, owner of Khondoker hotel and Abu Ysuf Pakhi (P.W.18) to the confinement cell.

105.P.W.7 denied that he did not state it to the Investigation Officer, while the defence drew it to his attention, to contradict his version that he made earlier to the IO. True, the P.W.7 did not state it to the IO, as it appears. But merely for this reason the version that he has made on dock narrating the fact of his confinement does not go on air. Mere omission in narrating a piece of fact earlier stated does not make the entire evidence of P.W.7 deposed in court untrue, particularly when the fact of his confinement in the camp of Faridpur stadium remains undisputed and unshaken.

106.P.W.7 also stated that during his confinement in the camp he saw accused Abul Kalam Azad @ Bachchu always accompanying Major Koraishi and he thought that he (accused) would initiate for his release as he was his class mate but he instead of doing it had told Major Koraishi –“he is a freedom fighter, finish him” and with this the Pakistani army had tortured him mercilessly. He could also hear screaming of women from a nearby torture cell. Defence could not impeach this pertinent version relating to the fact of affiliation of the accused with Pakistani army at the camps.

107.It is thus blatantly proved that accused Abul Kalam Azad @ Bachchu was a potential accomplice of Pakistani army which presumably being induced and encouraged by him used to initiate and commit atrocities.

(v)Whether the accused can be prosecuted as a member of ‘auxiliary force’?
108.It is a fact of common knowledge as well that the Pakistani occupation army organized Razakar, Al-Badar for the purpose of their operational support in implementing its atrocious activities in furtherance of policy and organized plan.

109.Together with the Al-Badr and Al-Shams paramilitary forces, the Razakar were under Pakistani Army command. The Razakar force was composed of mostly pro-Pakistani Bengalis. Razakars were actively associated with many of the atrocities committed by the Pakistan Army during the 9-month war of liberation in 1971.On September 7, 1971, Pakistan Defence Ministry through an official order (No:4/8/52/543 P. S.= 1 /Ko/ 3659 D-Ko) elevated members of the Razakar Bahini to the status of auxiliary force of the Pakistan Armed Forces, it is true. But even before such elevation, accused as a member of volunteer Razakar force acted and conducted actively along with and in association with the Pakistani army in committing atrocities. It has been proved. This is enough for an unerring inference that the accused had acted as a member of a militia force under control of Pakistani army for their operational and other purposes and therefore, we are of view that at the time of committing crimes for which he has been charged with the accused was a member of ‘auxiliary force’ as defined in section 2(a) of the Act of 1973

110.How the P.W.7 knew the accused Abul Kalam Azad @ Bachchu? It is a vital question to be resolved for weighing credibility of evidence of P.W.7. It is found that in reply to question put to him by the defence during cross- examination P.W.7 replied that accused Abul Kalam Azad @ Bachchu was his class mate when he was a student of arts group in Faridpur Rajendra College. It could not be refuted in any manner. Therefore, the testimony of P.W.7 that he saw the accused and his accomplices welcoming the Pakistani troops on 21 April 1971 at a place known as Goalchamat, Faridpur and later on he saw the accused at the army camp where he (P.W.7) was kept confined inspires full credence.

111.The above relevant facts have clearly proved that at the time of perpetration of alleged horrific crimes alleged status of accused was that he was a potential Razakar and a close affiliate of Pakistani army in Faridpur.