Bar Human Rights Committee: 'a chilling attempt to silence criticism'

The Bar Human Rights Committee of England and Wales, which has commendably - along with Human Right Watch - taken a keen interest in the trials taking place at the International Crimes Tribunal in Bangladesh, has issued a statement 'expressing concern' at the contempt charges brought by the prosecutor against Human Rights Watch.

- Ghulam Azam trial judgement

- Human Rights Watch statement on judgement 

- Prosecution written application seeking contempt proceedings

- Prosecution's oral arguments in support of application

- Comment on prosecution application

- Media reporting of tribunal judges pre-judgement speech

BHRC's statement - which was in fact published before the tribunal passed its order - states that, 'the current charges against HRW amount to a chilling attempt to silence criticism of the ICT.'

The statement particularly notes that 'The Commonwealth (Latimer House) Principles on the Accountability of and the Relationship Between the Three Branches of Government' which state:

“criminal law and contempt proceedings should not be used to restrict legitimate criticism of the performance of judicial functions.”

The statement is available on the BHRC website here, and is also reproduced below. Previous statements made by the BHRC on the Bangladesh ICT are available here

BHRC expresses concern at the contempt charges brought against Human Rights Watch by the Chief Prosecutor of the International Crimes Tribunal ("ICT") in Bangladesh. 

The Bar Human Rights Committee (“BHRC”) expresses its concern at the contempt charges that have been brought against Human Rights Watch (HRW) by the Chief Prosecutor to the Bangladesh International Crimes Tribunal ("ICT").

The charges relate to a report by Human Rights Watch on 16th August 2013 criticising the trial and subsequent conviction of Professor Ghulam Azam as falling far below international fair trial standards. Criticism of the ICT proceedings has been widely voiced internationally. The US Ambassador at Large on War Crimes Issues, Stephen J. Rapp, has publicly stated, in respect of earlier verdicts given by the ICT that "these convictions are not yet final. [These] issues are being raised in the submissions of the defendants in the appeals pending. It is not too late to get these things right in the Supreme Court or to adopt the [se] principles (of fair trials in accordance with international standards)."

Judges and the judicial process are open to criticism under the Bangalore Principles. The Commonwealth (Latimer House) Principles on the Accountability of and the Relationship Between the Three Branches of Government state: “criminal law and contempt proceedings should not be used to restrict legitimate criticism of the performance of judicial functions.”

The UN Declaration on Human Rights Defenders states that human rights defenders have the right “freely to publish, impart or disseminate to others views, information and knowledge on all human rights and fundamental freedoms.”

BHRC is concerned that the current charges against HRW amount to a chilling attempt to silence criticism of the ICT.

BHRC urges concentration upon examining those aspects of the trials and convictions that are criticized with a view to ensuring due process compliance rather than pursuing detractors. We support Stephen J. Rapp’s invitation that it is not too late for flaws in the trials to be accepted and remedied.

Tribunal passes order on contempt application against Human Rights Watch

2 Sept 2012

This is a detailed note taken of the order as read out by the Tribunal One chairman Justice Kabir relating to the prosecution's application seeking contempt proceedings to be issued against Human Rights Watch and two of its staff members concerning a report that the human rights organisation published regarding the trial of Ghulam Azam. It will be replaced by the text of the actual order as soon as it is available.

- Ghulam Azam trial judgement
- Human Rights Watch statement on judgement 
- Prosecution written application seeking contempt proceedings
- Prosecution's oral arguments in support of application
- Comment on prosecution application
- Media reporting of tribunal judges pre-judgement speech

Below is the order read out in court.

Today is fixed for passing order on an application filed for contempt under section 11(4) of the 1973 ICT Act by the chief prosecutor seeking the drawing up of proceedings against Human Rights Watch and two officials, the opposite parties. 

The chairman and two members are judges of the supreme court of bangladesh. This tribunal is a legally constituted judicial body set  upon 28 March 2010 to try crimes against humanity and other international offices as specified in section 3 of the ICT Act 1973. 

Mr Tapos with Sultan Mahmodd and Tureen Afroz made application for contempt in open court. The learned prosecutors submitted that this tribunal by observing such laws pursuant in the 1973 ICT Act and rules of procedure conducted the trial of Ghulam Azam and gave verdict on 15 July 2013 and convicted him and sentenced him to 90 years. 

It is submitted that two appeal have been made against judgement relating to Ghulam Azam which are not proceeding in the Appellate Division - but that despite this the opposing parties willfully made illegal comment on sub judice matter which is unethical. 

The opposite party no 3, working under the direct supervision of opposite party no 2 an article published on 16 August 2013, with title 'Bangladesh: Azam conviction based on flawed proceedings'. In same article on 16 August 2013, the opposite party 1, 2 and 3, criticised judgement and charges in the following way: 

(a) judges undertaking investigations
(b) collusion between prosecutors and judges
(c) tribunal failed to take steps to protect defence witnesses
(d) changes in judicial panel in the Azam trial
(e) lack of evidence to prove charged beyond reasonable doubt 

The learned prosecutors prayed for contempt proceedings to be issued against opposite party nos 1, 2 and 3 for biased, false, male fide article, and for scandalising the judges of the tribunal

On perusal of the application, and considering substance of the arguments of the learned prosecutors, we are of the view that there are sufficient grounds to draw up contempt proceedings against [each of the three parties]. 

Allegations in proposed contempt proceedings are: 

1. The opposite party has made five illegal contentions about the trial process of Ghulam Azam in an illegal article on a sub-judice mater, knowing that there are two appeals pending before the appellate division. Thus they illegally interfered in the justice process of Bangladesh. 

2. Opposite parties neither made any attempt to find out about the trial or attended any of the tribunal sessions, but together made biased, scandalous report with intent to ... make the whole trial proceedings controversial. 

3. Opposite parties have unethically questioned the dignity of the judge on their website and have tarnished them in the esteem of people. 

A notice should be issued against them to give response within three weeks why contempt proceedings under section 11(4) of the 1973 Act should not be introduced against them.

Next date of proceedings is 30 September 2013

'Mendacious hyperbole': Comment on prosecution contempt application against Human Rights Watch

The arguments put forward by the Tribunal's prosecution lawyers on 22 August seeking a contempt notice against Human Rights Watch, contained  a level of mendacious hyperbole that represents a particular low in prosecutorial standards at this Tribunal.

It is difficult to understand, why the prosecutors might want to make spurious claims which are so demonstrably untrue, or misrepresenting of the truth, when issues of fact are so crucial to the integrity of current trial proceedings - and indeed the prosecution's reputation.

For most of the three hours three given over by the tribunal to hear this application, the prosecution on Thursday ignored the substantive criticisms made by HRW and instead concentrated its fire on traducing the reputation of HRW. It was so one sided, so full of inaccuracy and misrepresentation that it was shocking the prosecutors could get away with it in a court of law.

Human Rights Watch is a large organization, undertaking human rights investigations into governments and non-state bodies around the world (90 countries apparently), which brings to the notice of a global audience violations that governments, their supporters and others would rather remain hidden. Inevitably along the way it has picked up enemies and critics - and there will of course, as indeed there should be, those who simply have different views about the way the organization should undertake its work.

But the prosecution appears to have little  understanding of this. Its strategy - set out in both its written application and the oral arguments - was to take a few articles (a number of them in fact written by the same person) exaggerate their implications, fail to provide any context, and then mix it with a great deal of falsehood and misrepresentation. And 'Voila!' There you have a picture of an amoral unethical organization, doing the bidding of the powerful, without a modicum of competence.

That this is a wholly untrue representation of HRW with no basis in reality appears irrelevant to the prosecutors.

In fact Tapos, the main prosecutor putting forward these arguments in court, got pretty close to suggesting that HRW was in fact funded by the supporters of the accused. One should not be surprised of this accusation of course - since this is a common allegation thrown around in Bangladesh these days against anyone who says just about anything critical of the tribunal.

It is my view that contempt proceedings have been hugely overused by all parties in relation to this Tribunal, and that the prosecutors were very ill-advised to proceed with a contempt application against Human Rights Watch. Nonetheless, having decided to file an application (which is their right), instead of doing everything it could to discredit a highly and globally respected human rights organization, they should simply have focused on the substantive reasons why it was their view that HRW's statement were contemptuous.

Perhaps it was because the prosecutors thought that their arguments were not that strong on the substantive issues that they tried to traduce HRW's reputation?

Here below are details of the false and/or misleading information provided by the prosecution to the tribunal. Separate posts will consider the arguments relating to the substantive issues relating to the contempt application.

DIRECT FALSEHOODS

Falshood 1: "Human Rights Watch does not publish details of its donors."
The prosecution made a categorical statement that HRW does 'not disclose its donors'. This was not said once, but was repeated a number of times. This claim was then combined with an allegation that HRW simply produces the information that is in the interest of these 'unknown' donors.

In fact HRW does publish details of all donors who provide it over $5,000**. This is available in the hard copy of the organisation's annual report.

Falsehood 2: "HRW has not published any report on Saudia Arabia"
The prosecution alleged that HRW received money 'from Saudia Arabia' (though it was not made clear from whom, it was implied it was from the government) and that as a direct result of this funding, HRW does not produce any reports on the violations in the country.

It is a direct falsehood to suggest that HRW has failed to write criticisms of the human rights situation in Saudia Arabia. In fact since just the beginning of this year, it has issued at least 18 press releases/reports. So the allegation that as a result of any money it may have received from Saudia Arabian citizens influenced its reporting is bogus.

And on the issue of receiving money from 'Saudi Arabia'. If any money was received it was from 'citizens'. Are the prosecutors suggesting that HRW should not receive financial support from people of particular ethnicities or particular nationalities - simply because their governments are abusive? For those who want to understand the full context concerning two meetings that HRW did hold in Saudia Arabia, it may be best to read this, a context which was not provided by the prosecutors.

Falsehood 3: "HRW publicly supports CIA renditions to other countries"
This was a statement made by the prosecutor, Tapos with no caveats or context. The prosecution claim refers back to an article in the Los Angeles Times published in 2009, where a HRW official was quoted as saying: '"Under limited circumstances, there is a legitimate place" for renditions, said Tom Malinowski, the Washington advocacy director for Human Rights Watch. "What I heard loud and clear from the president's order was that they want to design a system that doesn't result in people being sent to foreign dungeons to be tortured -- but that designing that system is going to take some time."' It is not clear exactly what this means, what are the limited circumstances in which HRW might support rendition. Perhaps significantly, there is no other HRW statement repeating this. It seems to be a singular reference.

What however is clear is that HRW has in fact been very critical of the CIA renditions that have taken place - as can be seen by looking at this link which itemises their various reports and press releases on the subject. These were all ignored by the prosecutors.

So it was false to suggest that HRW supports or supported the kinds of CIA renditions that the tribunal would have understood the prosecutor to have been referring.

MISREPRESENTATIONS/ODDITIES IN CRITICISM OF HRW 

1. Prosecutors' 'Pro-Isreali' position

In a country that is amongst the very few that does not even recognise the existence of Israel, it was to say the least fascinating to see the Bangladesh government appointed prosecutors support those organisations and individuals critical of HRW reports setting out human rights violations committed by the Israeli state and security forces - and going on to criticise HRW for bias against Israel!

For the prosecutors to quote approvingly 'pro-Israeli' NGO's (for example the organisation, NGO Monitor, in particular) who criticise HRW for their reports on Israel is failing to appreciate the deep divisions that exist in the politics of the middle East. The prosecutors seem to have misunderstood that it is only those who provide pretty much unconditional support to the Israeli state and its military actions against the palestinians who seem to be party to these criticisms against HRW.

The prosecutors made great play of the criticism of Robert Bernstein, a founder of HRW who alse acted as the organisation's president for many years. However, they failed to provide a context for his criticism - which was again about HRW's work on Israel. Bernstein simply did not think HRW should consider human rights violations that may have been committed by Israel as it is an 'open society'. It is his view that HRW should only focus on closed societies. As HRW stated in response to this "Any credible human rights organization must apply the same human rights standards to all countries." Do the prosecutors disagree with that?

They also made a criticism of HRW recieving a very large grant from the Open Society foundation - with the prosecutor stating that this was 'temptation of the wealthy'. Again the criticism about this grant only comes from 'pro-Israeli' lobbyists - the article which the prosecutors referred to was written by the person who runs NGO monitor, who consider George Soros (the man who ultimately runs Open Society) to be against Israel.

However, there appears to be absolutely no link between the grant and Israel - and it appears unclear what was the nature of criticism which the prosecutors trying to make. HRW's press release about this states: "The grant is intended to support the internationalization of Human Rights Watch, enabling it to staff advocacy offices in key regional capitals around the world and to deepen its research presence on countries of concern. Human Rights Watch plans especially to increase its capacity to influence emerging powers in the global South to push a pro-human rights agenda."

2. Honduras
The prosecutors referred to 'criticism' made by academics concerning HRW's work on Honduras. However a reading of the statement given by the academics shows that the statement is less criticism and more an urging of HRW to publish more statements criticising the overthrow of the government in Honduras. The letter acknowledged that HRW had been 'quick to condemn the illegal coup d'etat of June 28 and the human rights violations that occurred over the following week, which helped shine the spotlight of international media on these abuses ...'. 

The tribunal prosecutors moreover failed to tell the court that four days later HRW published a press release referring to a report issued by the Inter American Commission on Human Rights. The press release stated:  

"The finding by the Inter-American Commission on Human Rights of widespread abuses in Honduras should compel the international community to take firm action, such as targeted sanctions, to resolve the country's ongoing crisis, Human Rights Watch said today.

The commission released a report on August 21, 2009, showing a pattern of serious violations under the de facto government, including excessive use of force, arbitrary detention, sexual violence, and attacks on the media, as well as several confirmed deaths and possible "disappearances." The commission also documented an absence of effective legal protections from abuse. 

"Given the ongoing abuses documented by the commission and the lack of effective legal protection, it is urgent that the international community exert concerted and effective pressure to restore democratic government in Honduras," said José Miguel Vivanco, Americas director at Human Rights Watch.

It is rather difficult to understand what the prosecutors criticism was in relation to HRW's work on Honduras. Simply that HRW did not issue a press release quickly enough?

3. Ethiopia
The prosecutors also referred to criticisms of the Ethiopian government made in 2009 and referred in this connection to an Economist article titled, 'The government says Human Rights Watch has got it wrong. Really?'. Perhaps the prosecutors should have realised, simply from the title of the article itself  that the Economist was in fact supporting the HRW allegations. As the article states:

"The Ethiopian investigation did not, however, examine all of Human Rights Watch's accusations. Some executions listed by the group go unchallenged or are blamed unconvincingly on the guerrillas. The report skims over the Ogaden's humanitarian emergency, which Médecins Sans Frontières, a French-based charity, lists as one of the world's ten worst. The Ethiopian report flatly denies that the government blockaded separatist strongholds during a famine, thus starving civilians. The Ethiopians also lambast Human Rights Watch for not visiting the Ogaden, knowing that it was they who blocked the visit. They claim that the Ogaden has been open to anyone, yet most independent journalists have been banned from travelling there freely. Several aid organisations, including the International Committee of the Red Cross, have been kicked out. Aid workers there speak only anonymously, for fear of expulsion."

Again, it is therefore not entirely clear what is the criticism against HRW here - unless it is to use comments made by any oppressive government as ammunition against the human rights organization.

4. "Employing Nazi supporters"
The prosecutor claimed in court that HRW employed 'Nazi supporters in war crimes investigations'. (This claim could perhaps have been put within the category of falsehoods, rather than misrepresentations - but there is some ambiguity here so it perhaps is best to discuss the claim here.)

The prosecution was referring to Marc Galasco, who was a collector of Nazi and US war memorabilia. He had worked at HRW since 2003 before the controversy erupted in 2009 about his interest in these memorabilia. Although there was no evidence that he had any nazi sympathies or was anti-semetic, he was accused of being so. He was initially defended strongly by HRW, but was shortly after suspended by the organisation pending an investigation, and he resigned in 2010. Interestingly, since leaving HRW, Garlasco served as senior civilian protection officer for United Nations Assistance Mission in Afghanistan (UNAMA), heading the UN's Protection of Civilians office and In early 2012, was the U.N. senior military advisor for the Human Rights Council's (HRC) Independent Commission of Inquiry on Libya, where he investigated civilian casualties. No criticisms seem to have been made about Galasco since joining the UN. A summary of the claims made by different sides of this argument can be found here.

At the very least the prosecutions claims that HRW was employing 'Nazi supporters in war crimes investigation' is very misleading.

5. "HRW appointed a known terrorist on its advisory board"

This is a highly disputed assertion, and if the prosecutors were going to raise this point, they should clearly have explained the nature of the uncertainty. Prosecutors were apparently referring to the appointment of Shawan Jabrain to its middle-eastern advisory board. Jabrain is the General Director of Al Huq, a highly respected palestinian human rights organization based in Ramallah. He has worked there since 1987, and states that he has not been involved with Palestinian Front for the Liberation of Palestine since the mid-1980s. The Israeli security agencies do not beleive this and as a result he has been subject to a travel ban. To suggest that Jabrain is a 'known terrorist' - and imply that at the time he was appointed by HRW onto its advisory board he was an 'active terrorist' misrepresents the reality. It is notable that Amnesty International supported Human Rights Watch in calling for an end of the Israeli government's travel ban on him. It is rather suprising that the tribunal prosecutor would seek to rely on a judgement resulting from secret hearings of an Israeli court (see above about prosecutors and Israel). 

6. Conference paper by Paula Casaca, Executive Director, South Asia Democratic Forum
A long extract of a paper criticizing Human Rights Watch, which was submitted at a conference organized just last month, was read out by Tureen Afroz, a prosecutor - and given a great deal of authority by her in their attacks against HRW (See end section here).

There are however so many inaccurate assertions, confusing and misleading comments in the extract read out by Tureen - that it is unclear why she would seek to rely on it.

- Casaca said that HRW does 'not disclose the sources of its funding'. An inaccurate statement (see above)
- Casaca appears to think that if you support the end of impunity (which he acknowledged HRW said that it did), you can NOT at the same time criticise the process which has been established to end that impunity. He presumably believes that however unfair the system established to end impunity, it cannot be criticised. But clearly it is entirely consistent for HRW toboth support the principle of ending impunity in relation to 1971 crimes, whilst criticising aspects of the law established to carry this process out in order to ensure that the process of dealing with impunity is fair.
- Casaca claims that the only reason HRW gives for raising a concern about the role of 'politics' in the trial is a comment form the 'leader of the main opposition party, the BNP'. He then goes onto say: "It is quite extraordinary that HRW accusation of mixing politics with human rights is done on the sole basis of the declaration of a political leader; that is, HRW explicitly mixes human rights and politics and subsequently accuses others of doing so." HRW however have nowhere quoted the BNP leader to justify its view that 'the trials may not meet international fair trial standards and may be subject to political influence." It is unclear what Casaca is referring to when he makes this point
- Casaca criticises HRW for using the word 'atrocities' rather than the word 'genocide' in the title of one of its 2009 press releases. Casaca appears not to understand that the term 'genocide' is a legal term and that HRW may well at the time of writing the press release not wanted to pre-judge the issue.
- Casaca criticises HRW for failing to show the 'supposed contradictions of the Genocide definition used by Bangladesh and international law'. However, HRW's statements sets out those parts of the 1971 Act which are contradictory.
- Casaca then makes some a rather incomprehensible claim that HRW is behind an  “India/Bangladeshi conspiracy fabricating proofs against good Muslim leaders” - which is of course faintly ridiculous. A footnote in the article seems to suggest that HRW's press releases relating to the abduction of the Sukhranjan Bali (which Bali has now asserted to be true) and his presence in India, is part of a 'sectarian' agenda

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** An earlier version of this post stated that only donations above $25,000 were in the annual report. In fact, it is all donations received over $5,000 as now stated.

Prosecution contempt application against Human Rights Watch

This is a copy of application filed by the prosecutors seeking to initiate contempt proceedings against Human Rights Watch. This follows a press release issued by Human Rights Watch which was commenting on the 15 July 2013 judgment against Ghulam Azam.

You can read the oral arguments that went with this application here.

A petition for contempt under section 11(4) of the International Crimes (Tribunals) Act,1973, read with Rule 45 of the International Crimes (tribunal-l) Rules of Procedure, 20lA.

AND IN THE MATTER OF:

Chief Prosecutor ...Petitioner

Versus
1. Human Rights Watch, represented by its Board of Directors
2. Mr. Brad Adams, Executive Director, Asia Division, Human Rights Watch,
3. Mr. Storm Tiv, Associate, Asia Division, Human Rights Watch. ...Opposite Parties

1. That on 15th July 2013, the Hon'ble International Crimes Tribunal No. 1 of Bangladesh delivered its judgment in the Chief Prosecutor versus Professor Ghulam Azam, ICT-BD Case No. 06 of 2011 (henceforth, Azam Case) and sentenced him for 90 years of imprisonment since he was found guilty, beyond reasonable doubt, for the offences, under section 3(2) of the International Crimes (Tribunals) Act, 1973 (henceforth, the 1973 Act). committed by him in 1971.

2. That the Appeals of the Azam Case against the conviction and sentencing are now pending before the Appellate Division of the Supreme court of Bangladesh.  

3. That on 16th August 2o13, opposite Party No. 1, an intemational NGO, namely - Human Rights watch, its Head office being in 350 Fifth Avenue, 34th Floor, New York, Ny 10118-3299 USA, originated an article written by the Opposite Party No. 3, namely one Storm Tiv, an Associate of Asia Division, Human Rights Watch, his working address being [..] under the direct supervision of Opposite Party No. 2, namely Mr. Brad Adams, Executive Director, Asia Division, Human Rights Watch, his working address being [..] The said article was published via Opposite Party No l's worldwide official website (http://www.hrw.org) with the following caption: Bangladesh: Azam conviction based on flawed Proceedings: Analysis outlines how Fair Trial Rights of Accused Seriously Compromised fair trial’.  

That the said article is attached herewith and marked as, Annexure-A.

4. That in the said article dated 16th August, 2013, the Opposite Party No. 1 with bias and mala fide intention most unethically commented, while the Appeals are pending before the Appellate Division of the Supreme Court of Bangladesh, on the Professor Ghulam Azam's trial proceeding at this Hon'ble Tribunal and the evidential issues of the same case.

5. That in the said scandalising article, the Opposite Party No. 1 alleged, inter alia, that: 

(a) Judges of this Hon'ble Tribunal improperly conducted an investigation on behalf of the prosecution in the Azam Cose; 

(b) There was collusion and biasness among prosecutors and judges in the Azam Case; 

(c) The Tribunal failed to take steps to protect defense witnesses of the Azam Case, 

(d) There were changes in the judicial panel during trial of the Azam Case; and 

(e) There was lack of evidence to establish guilt beyond a reasonable doubt in the Azam Case.

6. That the Petitioner concedes that issues relating to above mentioned allegation (e) are clearly a matter sub-judice and issues relating to allegations (c) and (d) are of no relevance to the Petitioner and as such, the Petitioner does not at all rest his prayer on issues relating to allegations (c), (d) and (e).

7. That the petitioner submits that statements made in reference with the issues relating to above mentioned allegation (a) and (b) are biased, baseless, utterly false and fabricated, ill-motivated, and are not made in good faith. Such statements were made only to scandalize this Hon'ble Tribunal and its process (by exercising its independent judicial functions and also fair trial) and to undermine the confidence of the people in the integrity of this Hon'ble Tribunal and its process.

8. That the Petitioner therefore prays, relying upon issues relating to above mentioned allegations (a) and (b) only, that this Hon'ble Tribunal may issue an order of contempt against the above-mentioned opposite parties under section 11(4) of the International Crimes tribunals) Act,l973, read with Rule 45 of the International Crimes (Tribunal-1) Rules of Procedure, 2010 "

I Applicable Laws

9. That section 11(4) of the International Crimes (Tribunals) Act,1973 states that: 

''A Tribunal may punish any person, who obstructs or abuses its process or disobeys any of its orders or directions, or does anything which tends to prejudice the case of a party before it, or tends to bring it or any of its members into hatred or contempt, or does anything which constitutes contempt of the Tribunal, with simple imprisonment which may extend to one year, or with fine which extent to Taka 5ive thousand, or with both.'

10. That moreover, Rule 45 of the International Crimes (Tribunal-I) Rules of Procedure, 2010 states that:

'In pursuance of section I I (4) of the Act, the Tribunal may draw a proceeding against any person who obstructs or abuses the process of the Tribunal, or disobeys any of its order or direction of the Tribunal, or who does anything which tends to prejudice the case of a party before the Tribunal, or tends to bring the Tribunal or any of its members into hatred or contempt, or does anything which constitutes contempt of the Tribunal.'  

II. Jurisdiction of the Tribunal 

11. That the Petitioner submits that this Hon'ble Tribunal has jurisdiction over the relevant matter and the parties.  

12. That the Petitioner humbly submits that under section 11 (4) of the 1973 Act, this Hon'ble tribunal is empowered to punish 'any person', which includes both natural and legal person, whether living in Bangladesh or abroad, who 'tends to bring it or any of its members into hatred or contempt' and/or 'does anything which constitutes contempt of the tribunal' "

13. That the Petitioner humbly submits that the above-mentioned opposite parties, by publishing the said article through its worldwide website and thereby scandalising this Hon'ble Tribunal, either have 'tended' to bring this Hon'ble Tribunal into hatred or contempt and/or have 'done' aractwhich constitutes contempt of the Tribunal.'

14. That, therefore, this Hon'ble Tribunal has jurisdiction over the relevant matter and the parties under section 11(4) of the 1973 Act, read with Rule 45 of the International Crimes (Tribunal-l) Rules of Procedure, 2010.

III. Background of the Opposite Parties

15. That Opposite Party No 1 is an US based international human rights organization which has been in operation for the last 30 years or so" In its official website, at http://www.hrw.org/about, it claims to be 'one of the world's leading independent organizations dedicated to defending and protecting human rights'. It further claims that by focusing international attention where human rights are violated, it 'gives voice to the oppressed and hold oppressors accountable for their crimes'.

16. That the Opposite Party No t has been vehemently criticized worldwide for its motivated activities as a human rights organization. Some of the major allegations against the Opposite Party No 1 include, inter alia:

(a) allegations of poor research and inaccuracy; 

(b) allegations of selection bias; 

(c) allegations of ideological bias; 

(d) allegations of unethical fund raising policies; 

(e) allegations of bias for or against particular nations; 

(f) allegations of appointing Nazi policy supporters (such as, Mr. Marc Garlasco) as investigator to report on war crimes and crimes against humanity;  

(g) allegations of appointing (pro-US) terrorists (such as, Mr. Shawan Jabrain) to its Advisory Board; and 

(h) allegations of publicly supporting CIA's illegal actions of extraordinary rendition towards suspected (anti-US) terrorists.

17. That a wide number of reports, research publications, open letters of scholars etc. evidences the unethical and motivated role played by the Opposite Party No 1 in various parts of the world by its unreliable, uncredited, inaccurate and bias reports and findings on human rights matters. Even, the insiders like Mr. Robert L Bernstein, a founder and former chairman of the Opposite Party No 1 has publicly blamed the Opposite Party for its unethical and motivated activities.

IV Contemptuous Issues

18. That in the above mentioned scandalous report, originated by the Opposite parties, alleges that judges of this Hon'ble Tribunal improperly conducted an investigation on behalf of the prosecution in the Azam Case.

19. That the Petitioner submits that there is absolutely no base for bringing such scandalising allegation upon this Hon'ble Tribunal. The Petitioner also denies that there was ever any such request made by the prosecution in the Azam Case. Further, the judgment of the Azam Case does not at all endorse any such investigation being done by this Hon,ble Tribunal.

20. That the Petitioner submits that such allegation made by the Opposite parties are baseless, complete distortion of facts, ill-motivated and as such, unreliable. These statements were made merely to scandalize this Hon'ble Tribunal and its process. Also, the statements were made not in good faith and as such, tantamount to contempt of this Honorable Tribunal.  

21. That further in the above mentioned scandalous report, originated by the the Opposite Parties, alleges that there was collusion and biasness among prosecutors and judges in the Azam Case.  

22. That the Petitioner submits that there is absolutely no base for bringing such scandalising allegation upon this Hon'ble Tribunal. The petitioner also denies that there was ever any unholy or discrete association between this Hon'ble Tribunal and the prosecution. These statements were made merely to scadalize this Hon'ble Tribunal and its process. Also, the statements were made not in good faith and as such, tantamount to contempt of this Honorable Tribunal.  

23. That the only reference made by the Opposite Parties to its finding of collusion and biasness among prosecutors and judges in the Azam Case was an alleged skype communication between a member of the bench with his acquaintance at a very personal level. The Petitioner concedes that the said member of the bench did voluntarily resign to avoid any unwanted controversy. However, the Petitioner submits that no inquiry, whether legal, social or technical, was ever made to find the authenticity of the said skype communication and as such, the existence, let alone, content of the skype communication, can not be relied upon to allege a collusion and biasness among prosecutors and judges in Azam Case.

V. Lack of Good Faith

24. That the Petitioner submits that the allegations (a) and (b) made in the scandalous article originated and published by the Opposite Parties lack 'good faith' on the part of the Opposite Parties. This is because:

i. For that the false and unreliable statements made in allegations (a) and (b) contained in the scandalous report of the Opposite Parties have unnecessarily questioned the image, standing and reputation of this Hon'ble Tribunal and as such, scandalized this Hon'ble Tribunal; 

ii. For that the Opposite Parties have never carried on any independent investigation/research/inquiry to make such scandalous remarks contained in allegations (a) and (b) about this Hon'ble Tribunal and its process; 

iii. For that the statements were inaccurate as it does not rely upon any reliable authority or in that matter any authority at all; 

iv. For that the Opposite Parties, claiming to be an independent trial observer of the ICT BD, has never personally attended through any of its member or representative to observe a single trial of this Hon'ble Tribunal whether in Azam Case or other; 

v. For that the false and unreliable statements made in allegations (a) and (b) contained in the scandalous report of the Opposite Parties are made long after pronouncement of the judgment of the Azam Case especially, when the Appeal of the Azam Case is pending before the Hon'ble Appelate Division of the Supreme Court of Bangladesh; 

vi. For that the Opposite Parties are in a chronic habit of publishing reports relying upon poor research and inaccurate facts; 

vii. For that the Opposite Parties are in a chronic habit of exercising selection and ideological bias; 

viii. For that the Opposite Parties are in the habit of following unethical, immoral and undisclosed financial policies ; 

ix. For that the Opposite Parties are heavily dependent upon their undisclosed donor (private persons and private organizations) driven fund and as such, committed to fulfill the agenda of such undisclosed donors; 

x. For that the Opposite Parties do not practice any ethical standard in its recruitment policies and even go a long way to accommodate terrorists and human rights violators in their board; 

xi. For that the Opposite Parties have illegally intervened in the judicial process of a sovereign country and tried to assassin the image of the entire process of trial of war criminals at the ICT BD and the judicial system, in general, of Bangladesh; 

xii. For that the Opposite Parties have wrongfully exercised their 'freedom of expression' as guaranteed under Article 19 of the (Universal Declaration of Human Rights, 1948 and Article 13 of the American Convention of Human Rights, 1969 and as such, an contempt rule upon them shall not merit any 'chilling effect'; 

xiii. For that the Opposite Parties have violated all norrns of journalistic morality as expected under the international law; 

xiv. For that the Opposite Parties under the veil of an human rights organization cannot become a partisan to a human rights issue simply because their undisclosed donors demand so; 

xv. Finally, for that, statements made at allegations (a) and (b) contained in the scandalous report of the Opposite Parties do not only attract the provisions of section 1l(4) of the 1973 Act but also, the rules and practices of the international law.  

VI  PRAYER  

Therefore, it is humbly prayed that this Hon'ble Tribunal may kindly:
(a) issue a contempt notice stating that why a contempt proceedings should not be initiated against the Opposite Parties in exercise of power of this Hon'ble Tribunal under section 11(4) of the International Crimes Tribunals) Act, 1973, read with Rule 45 of the International Crimes (Tribunal-l) Rules of Procedure;

(b) upon hearing, convict the Opposite Parties under section 11(a) of the International Crimes (Tribunals) Act, 1973, read with Rule 45 of the International Crimes Tribunal) Rules of Procedure, 2010 for publishing an article dated 16.08.2013 (Annexure - A) through its worldwide website and thereby scandalising this Hon'ble Tribunal by biased, baseless, false and fabricated and mala fide publication (Annexure -A), and as such, have either 'tended' to bring this Hon'ble Tribunal into hatred or contempt and/or have 'done' an act which constitutes contempt of the Tribunal';

(c) to stay further display, publication, circulation or use in any matter or in any other form of the scandalous Article dated 16.08.2013 (Annexure-A)

(d) upon conviction, sentence the Opposite Parties, with imprisonment of one year and/or adequate fine and forward and notify for the execution of the same to the competent state, i.e., USA through the Ministry of Foreign Affairs;

(e) issue any other order(s) or direction(s) that this Hon'ble Tribunal deems fit and proper for the interest of justice.

Human Rights Watch Statement on Ghulam Azam trial

This is the Press Release and the associated appendix issued by Human Rights Watch on 16 August 2013 setting out its view of the trial of Ghulam Azam. The original press release is here:

(To see the tribunal judgement, click here)

PRESS RELEASE 

Bangladesh: Azam Conviction Based on Flawed Proceedings 

Analysis Outlines how Fair Trial Rights of Accused Seriously Compromised
AUGUST 16, 2013 

(New York) – The trial of Ghulam Azam, the former chief of Bangladesh’s Jamaat-e-Islaami (Jamaat) party, at Bangladesh’s International Crimes Tribunal was deeply flawed and did not meet international fair trial standards, Human Rights Watch said today.
In March 2010 Azam was charged with six counts of conspiracy, planning, incitement, complicity, murder, and torture as crimes against humanity at the International Crimes Tribunal, known as the ICT, a specially constituted tribunal set up to try those responsible for war crimes during Bangladesh’s 1971 independence war. The judgment, handed down on July 15, 2013, found Azam guilty on all counts and sentenced him to life in prison for 90 years. He was spared the death penalty due to old age. On August 12, the prosecution appealed the sentence, arguing that Azam deserved the death penalty. 

“Human Rights Watch has long supported the efforts to deliver accountability for the atrocities committed during the 1971 war, and to ensuring meaningful justice to victims and survivors, through fair trials which meet international standards,” said Brad Adams, Asia director. “We sounded the alarm that the law and trial process were deficient, but the government ignored the warnings. The government has got the conviction it wanted, but it has failed to ensure a fair trial that settles once and for all whether Ghulam Azam was guilty.” 

Human Rights Watch’s concerns about the Azam trial include:
· Judges improperly conducted an investigation on behalf of the prosecution
· Collusion and bias among prosecutors and judges
· Failure to take steps to protect defense witnesses
· Changes in the trial court panel; and
· Lack of evidence to establish guilt beyond a reasonable doubt 

Among the most serious problems is the fact that the judges stated that they conducted an investigation to make up for deficiencies in the case presented by the prosecution. Judges in Bangladesh are only empowered to examine the evidence placed in front of them by the parties to the case. The defense counsel was not aware of this investigation and was thus unable to comment on or challenge the evidence obtained by the judges, which constitutes a serious violation of article 14 of the International Covenant on Civil and Political Rights, to which Bangladesh is a party. The investigation calls into serious question the impartiality of the court. 

The ICT had not answered allegations of judicial bias raised by intercepted Skype and other communications in which The Economist revealed prohibited collusion between the judiciary, the prosecution, and the executive branch via an external consultant. Many conversations concerned the Azam trial, including ones which show that the judges laid out a blueprint to be used by the prosecution as to how to conduct the trial, which witnesses to call, and how to question them. The conversations make it clear that the judges were closely advising and directing the prosecution on presenting their case against Azam. 

In addition, there have been ongoing problems with intimidation of defense witnesses and raids on defense chambers, including in the Azam case. The trial chambers have not ordered any investigation or offered any practical solution to overcoming the security concerns expressed by defense witnesses. 

“The problems with the Azam trial are manifold, and lead to the inescapable conclusion that there has been strong judicial bias towards the prosecution and grave violations of due process rights,” Adams said. “The victims of these crimes and their families deserve real answers, which can only be found through fair and transparent proceedings.”

APPENDIX:

Bangladesh: Azam - Trial Concerns

Human Rights Watch has long supported efforts to deliver accountability for the atrocities committed during Bangladesh’s war of independence and to ensuring meaningful justice for victims and survivors through fair and transparent trials which meet the highest standards. Human Rights Watch takes no position on the guilt or innocence of any of the accused at the International Crimes Tribunal (ICT) of Bangladesh. Our concern is whether international fair trial standards are upheld. 

The ICT was set up to try alleged war crimes and other grave violations of international humanitarian law during the 1971 war of independence from Pakistan. The war followed the victory of the East-Pakistan-based Awami League in the national elections. The Pakistani government, led by military ruler General Yahya Khan, refused to accept the results. On March 26, 1971, the government began Operation Searchlight, sending troops into East Pakistan to arrest Awami League leaders and put down protests. The Pakistani army and affiliated vigilante groups embarked on a massive wave of violence, including widespread rape. Estimates of the number of people killed range from 300,000 to 3 million. As many as 10 million people were reportedly displaced and fled to neighboring India. The Indian army intervened and joined resistance forces to defeat the Pakistani army after nine months of violence. The independent state of Bangladesh emerged in December 1971. 

In response to this carnage, in 1972 the new government established special tribunals to try collaborators. In 1973, the parliament passed the International Crimes (Tribunals) Act. But, for political reasons, trials never occurred. 

Bringing those responsible for the 1971 crimes to trial continues to have considerable popular support and was one of the main planks of the successful Awami League election campaign in 2008. 

Background on Ghulam Azam
Ghulam Azam, 91, is one of the most senior members of the opposition Jamaat-e-Islami Party to have been tried by the ICT. Azam is the former chief of Jamaat. He was charged in March 2010 with six counts of conspiracy, planning, incitement, complicity, and murder and torture as crimes against humanity under the ICT Act. The judgment, handed down on July 15, 2013, found Azam guilty on all counts and sentenced him to 90 years in prison. He was spared the death penalty on account of his age. On August 12, 2013, the prosecution appealed the sentence, asking for Azam to be hanged. 

Azam has been active in the Jamaat Party for many decades. He headed the East Pakistan branch of the party from 1969-1971 and was head of the party after independence from 1978 until his retirement in 2000. During the 1971 war, he and the Jamaat Party were opposed to Bangladesh’s independence. Azam was vocal in his opposition and was a member of the central Shanti or Peace Committee during the war. The Shanti Committee collaborated with the Pakistani army, acting both as local informants and as recruiters of fighters for various militant groups—including the Razakars, Al-Badr, and Al-shams—that supported the Pakistani army on the ground. These militant groups were responsible for serious human rights abuses during the war. Azam met senior members of the Pakistan government during the war, gave speeches exhorting people to resist the independence movement, and labelled pro-independence supporters as enemies of Islam. The prosecution alleged that Azam was responsible for the crimes outlined in the indictment as a result of his superior position in Jamaat, which gave him effective control over the various armed auxiliary units which supported the Pakistan army and whose members committed the actual crimes. The defense has denied that Azam had any control over armed units. It has argued that his opposition to an independent Bangladesh was not an indictable offense. 

The Azam Trial
Many of the cases before the ICT, including the Azam trial, have been tainted by allegations of bias by the trial chambers towards the accused. Human Rights Watch has long drawn attention to credible allegations of improper interference against defense witnesses and defense counsel. In perhaps the most dramatic example, the trial chamber in another case essentially ignored the abduction of defense witness Shukhoranjan Bali from the gates of the courthouse, as detailed below. 

Human Rights Watch is not in a position to say whether Ghulam Azam is or is not responsible for the crimes alleged in the indictment, but the process and evidence adduced render the trial fundamentally unfair under both Bangladeshi and international standards.
Below are key concerns that Human Rights Watch has identified with the ICT’s conduct of the Azam trial. 

1. Judges Improperly Conducted an Investigation on Behalf of the Prosecution
In an extraordinary break with practice in Bangladesh, the judges in the Azam case conducted their own investigation into the case to make up for deficiencies in the case presented by the prosecution, calling into serious question the impartiality of the court. Defense counsel were unaware of this investigation, and were thus unable to comment and challenge the evidence obtained by the judges. This constitutes a serious violation of article 14 of the International Covenant on Civil and Political Rights to which Bangladesh is a party. 

During the oral presentation of the verdict in court on July 15, 2013, the presiding judge, AKM Fazle Kabir, referred to the paucity of evidence presented by the prosecution during the trial, saying “the prosecution did not provide us with much” and “the documents which the prosecution . . . submitted as evidence were not adequate.” 

Verdicts in ICT cases have usually been delivered within a month after final statements by each party. The Azam verdict was unusual as the judgment was delivered several months later because, as Justice Kabir explained in his oral statement, the judges decided to conduct their own investigation in order to strengthen the prosecution’s case. Justice Kabir noted that the prosecution had submitted mainly newspaper articles which were not reliable as they could often be wrong, and therefore the judges conducted their own research to get “reference books.” Although they reached a verdict of guilty on all counts, Justice Kabir went on to say that they “were still not too satisfied with the documents [they themselves] were able to collect,” all the while conceding that the case rests largely on documentary evidence. 

Bangladesh is a common law country and trials are conducted on an adversarial basis. The standard practice in such jurisdictions is that the judges reach verdicts on the basis of the evidence produced by the various parties to the case. According to practicing lawyers in Bangladesh, judges do not conduct their own investigations when they find that they are unable to reach a guilty verdict. 

The admission by Justice Kabir suggests that the judges were either under pressure to produce guilty verdicts or else had presumed Azam’s guilt. After the ICT trial of Abdul Qader Mollah, for example, who was sentenced to life in prison rather than death, crowds of hundreds of thousands took to the streets across the country to demand that he be executed. 

Prime Minister Sheikh Hasina was reported by media as saying she would talk to the judges to convince them to take the sentiments of the protesters into account in sentencing. The government also responded by proposing and passing amendments to the ICT law, reducing the appeal period from 90 to 60 days and for the first time allowing the prosecution to appeal sentences. 

Law Minister Shafique Ahmed said the amendment aimed to ensure equal rights for both the government and the accused. 

2. Lack of Evidence to Establish Guilt Beyond a Reasonable Doubt
Human Rights Watch has no independent information on the role that Azam may or may not have played in the violence in 1971. However, the prosecution neither alleged nor offered any evidence showing Azam personally committed or ordered violence. The verdict issued by the court came to the same conclusion: “There are no allegations that he was physically present at any crime scene. And secondly, there are no allegations that he actively directed the commission of war crimes.” 

The trial chamber concluded in its verdict that the bulk of the charges against Azam depended on circumstantial evidence, all of which was either documentary or hearsay, and effectively admitted that the evidence presented was not adequate for a conviction. The defense was unable to challenge any of the facts on which the court relied as a result of its own investigations, which took place after the court closed the presentation of evidence in the trial. The verdict relies, for example, on several books not presented as evidence during the trial in its finding that crimes against humanity, genocide, and other war crimes were committed during the war. The defense was similarly unable to comment on the judges’ reliance on other documentary evidence regarding Azam’s role in the crimes of militia units. 

The vast majority of documentary evidence was contemporaneous newspaper accounts whose veracity could not be determined and whose reliability is subject to question, particularly given the strict censorship laws in effect at the time. The chief prosecution witness who tendered these documents, the investigating officer, acknowledged the pervasive censorship in effect at that time and admitted during cross-examination that he was unable to determine the veracity of the newspaper accounts. This was confirmed by the first prosecution witness who relied, in large part, on documentary evidence during his testimony. Reliance on unverified newspaper accounts to establish facts essential to proving Azam’s superior responsibility over the various armed groups opposed to an independent Bangladesh raises serious fair trial concerns. 

As we have also previously noted, the Azam judgment appears to suggest that there is no need to prove a connection between the accused and the charged offense. Different parts of the judgment make this point, but it is made most definitively in paragraph 288 in response to an argument by the defense that the prosecution had failed to “identify any specific offence…commited pursuant to any action of the accused.” The trial judgment states, “We hold that ‘nexus’ is not required to prove genocide and widespread killing when attack was directed against unarmed civilian population.” This statement suggests that the trial chamber, which admitted that the prosecution failed to provide evidence linking the accused directly to any crime and that the guilty verdict was arrived at through circumstantial evidence alone, found Azam guilty of genocide and crimes against humanity without finding a connection between him and the crimes. 

3. Collusion and Bias Among Prosecutors and Judges
Human Rights Watch notes that the Azam trial was among the cases discussed by an ICT judge, prosecutors, members of the executive branch and an external consultant in leaked communications published by The Economist in December 2012. The communications addressed many topics, but the most troubling among them provide strong evidence of collusion between ICT judges, prosecutors, officials in government office, and an external consultant. 

Many of the leaked conversations revealed that the chair of the trial chamber, Justice Nizamul Huq, and the consultant essentially were guiding the prosecution in making the case against Azam as well as the accused in other cases. It is clear from the communications that there were prior discussions about what charges to bring against Azam. A document attached to an email sent to Huq by the consultant, sets out the strategy to be followed by the prosecution in making their case against Azam. 

The leaked communications contain several conversations in which Huq and the consultant discuss not only who the prosecution should list as witnesses, but also what the content of their testimonies should be. In one conversation, for example, the consultant tells Huq that the prosecutor is worried about a particular witness and that therefore the witness should not be allowed to talk about the Pakistani army or the war for fear that the witness might ascribe guilt to the Pakistani army and shift culpability away from Azam. In another conversation, Huq instructs the consultant to tell the prosecutor how to conduct his examination of the prosecution’s investigating officer, saying that the prosecutor was not doing a good job. There are several discussions about the importance of the Azam trial, and whether it can be expedited so that it would be the first judgment handed down by the ICT given the pressure from the government to hand down a verdict by mid-December 2012. Reading the conversations as a whole, it is abundantly clear that the chair of the tribunal had regular meetings and discussions with the prosecutors in the Azam case.
Human Rights Watch had several meetings with Huq over a two-year period, and observed first-hand instances of close collaboration between Huq and the prosecutors. In one meeting, Huq referred to the prosecution as “us” throughout the meeting. In another meeting, Huq instructed both the registrar and a prosecutor to sit in and had them confirm to us nearly everything he said. 

Although Chairman Huq effectively admitted in court that the leaked conversations published by The Economistwere real and resigned shortly thereafter , the ICT has refused to examine the communications or follow-up on the collusion they revealed, saying that the way they were obtained was illegal and therefore the content of the intercepts could not be admitted into evidence. At a minimum, the ICT should have ordered an investigation into the wrongdoing. This the ICT has not done: instead, the tribunal authorities simply disregarded this irrefutable evidence of judicial bias. 

The Law Minister, Shafique Ahmed, stated that Huq’s resignation did not affect the proceedings in any of the ICT cases. The tapes suggest that Ahmed and the State Minister for Law have interfered with the independence of the judiciary at the ICT. In one conversation, for example, Huq spoke about how Ahmed summoned Judge Ahmed for a meeting and asked him to resign and how Huq convinced Ahmed to claim he was resigning on medical grounds. In another conversation, Huq spoke to the consultant about the pressure he was under from the Law Minister to make the Azam case the first judgment from the ICT. The consultant confirmed that he had received a similar message from Ahmed. 

Human Rights Watch believes that the impropriety revealed by The Economist necessitates a new trial for Azam and all other accused whose cases were discussed by Huq. 

4. Failure to Take Steps to Protect Defense Witnesses
In the Azam case, as in other cases before the ICT, the defense has alleged that members of the prosecution and government security agents intimidated defense witnesses, including by threatening their arrest should they cooperate with the defense. 

The court initially allowed the defense to call 12 witnesses. The prosecution was allowed to call 16 witnesses. The court cited the practice of international tribunals to justify its limits on the number of witnesses. However, the court ultimately heard the evidence of only one defense witness, closing down the case when defense counsel asked for a week’s adjournment to address what it said were concerns with the security of the remaining witnesses. 

Defense witnesses have compelling reasons to believe that they may not be safe before, during, or after their testimony at the ICT. Defense witnesses, many of whom live in remote villages, have reported harassment for cooperating with defense counsel. Several witnesses have been threatened with criminal charges. At least one researcher working for the defense has had to go into hiding due to threats. A defense witness in the Azam case refused to testify claiming that the prosecution’s investigating officer told him he would face war crimes charges if he testified. No investigation was ordered into this allegation.
In the most dramatic case, witness Shukhoranjan Bali was allegedly abducted from the gates of the courthouse in November 2012 as he was coming to give evidence in the trial of another accused. Immediately after the alleged abduction, defense lawyers told the trial chamber what had happened. The court ordered the prosecution, not the police, to investigate the claim and accepted the prosecution’s response a few hours later that the entire episode had been fabricated by the defense. Bali has since confirmed to an independent lawyer that he was abducted and then taken by Bangladesh security forces over the border into India, where he was arrested for illegal entry. The court has done nothing to investigate or hold accountable those responsible for the abduction and this gross interference with the administration of justice. 

The abduction of Bali and threats against other defense witnesses appear to have had a direct impact on the Azam trial. As noted above, while the defense initially indicated it would call 12 witnesses, in the end it called only one, citing security concerns.
On December 9 the defense asked for a one week adjournment to address these concerns, but the court refused to give the defense any more time and ordered the case closed after the testimony of the son of the accused, the sole defense witness. The court did not issue any orders for witness protection or safe passage, nor did it order any investigation into the threats and other forms of witness intimidation alleged by the defense. The trial chamber had also previously refused to issue summonses for two international expert witnesses called by the defense who needed visas to enter Bangladesh. 

The ICT has failed to meet its obligation to protect witnesses. Human Rights Watch notes that although the court ordered a safe house to be set up, the prosecution team told us the safe house was under its control. No separate arrangements were made for defense witnesses who believed they would be at risk if their whereabouts were known to the prosecution. Both the prosecution and judges told Human Rights Watch that the allegations of intimidation are outright fabrications by the defense and, as noted above in the Bali case, they simply denied the abduction ever happened. 

5. Changes in Trial Court Panel
Frequent changes to the three-judge panel in the Azam trial mean that only one judge heard the entirety of the evidence. 

The first panel in the Azam case, formed in March 2010, consisted of Chairman Justice Nizamul Huq, Judge Ahmed, and Judge Kabir. The trial started in June 2012 with opening statements from the two parties. 

Judge Ahmed resigned unexpectedly in August 2012 and was replaced by Judge Jahangir, who heard the last two months of the prosecution’s case but missed the first two witnesses. The court’s judgment relied heavily on the testimony of the first witness, Moontassir Uddin Khan Mamun, a history professor at Dhaka University. 

Judge Kabir left the Azam trial in March 2012, before it had even started, when he was transferred to chair the second tribunal at the ICT. 

Judge Kabir was replaced by Judge Anwarul Huq, who was the only judge on the panel to hear the entirety of the case against the accused. 

On December 11, 2012, as already noted, Nizamul Huq resigned after audio tapes and email correspondence were published by the Economist revealing he had colluded with the prosecution. 

Justice Kabir was reassigned to the case the following day, replacing Huq. When closing arguments in the Azam trial finished in April 2013, Justice Kabir had heard only the last few months of the case, which amounted to one defense witness and none of the prosecution witnesses. 

It is critical for judges to hear all the evidence in a case and to be in a position to judge the credibility of the witnesses, particularly in a trial involving 40-year-old evidence and complex legal issues. The ICT has failed on this front as well.

Ghulam Azam Judgement, Part 7: Sentence

This is the seventh and final part of the Ghulam Azam judgement, dealing with the issue of sentence

To see part one - dealing with introductory issues
To see part two - dealing with charges relating to conspiracy and planning
To see part three - dealing with charge relating to incitement

To see part four - dealing with charge relating to complicity

To see part five - dealing with charges relating to murder
To see part six - dealing with command control and superior responsibility 

XXV. Verdict on conviction
387. Having considered all evidence and materials on record and the arguments advanced by the learned lawyers of both the parties, we unanimously hold that the prosecution has successfully proved all the five broad charges brought aganist accused professor Ghulam Azam beyond reasonable doubt.

Charge Nos. 1 and 2: The charge No. 1 Conspiracy contains 06 counts while charge No.2 Planning contains 03 counts. The accused is found GUILTY to the offences of conspiracy and planning for invloving himself in the commission of 239 crimes as specified in section 3(2) read with 4(2) of ICT Act of 1973 and he be convicted and sentenced under section 20(2) of the said Act.

Charge No.3 Incitement contains 28 counts. The accused is found GUILTY to the offence of incitement for involving himself in the commission of crimes as specified in section 3(2) read with 4(2) of the ICT Act of 1973 and he be convicted and sentenced under section 20(2) of the said Act.

Charge No.4 Complicity contains 23 counts. The accused is found GUILTY to the offence of complicity for involving himself in the commission of crimes as specified in section 3(2) read with section 4(2) of the ICT Act of 1973 and he be convicted and sentenced under section 20(2) of the said Act.

Charge No.5 The accused is found GUILTY to the offences of murder and torture which fall within the purview of crimes aganist humanity as specified in section 3(2)(a) read with section 4(1) of the ICT Act of 1973 and he be convicted and sentenced under section 20(2) of the said Act.

XXVI. Verdict on Sentence
388. From the foregoing discussions and documentary evidence disclosed above, it is well-proved that accused Ghulam Azam as a defacto superior in the name of preserving Pakistan played the role of an architect in forming Peace Committee, Razakars, Al-Badr and Al-shams by the members of Jamaat-e-Islami and its student wing Islami Chhatra Sangha who in fact 240 acted in support of Pakistan occupation forces in carrying out atrocities during nine months’ War of Liberation in 1971. It is also proved that Pakistan occupation forces in collaboration with the said para-Militia Bahinis launched attacks upon unarmed civilians and killed millions of Bangalees, but the accused intentionally did not take any measure to prevent his subordinates from committing those crimes as specified in section- 3(2) of the Act.

389. Mr. Syed Haider Ali, the learned Prosecutor lastly submits that the prosecution has successfully proved that accused Ghulam Azam was the master mind of all atrocities who knowingly by exercising his superior status committed the barbaric offences through his subordinates during the War of Liberation and as such the highest punishment as provided under law should be inflicted upon him.

390. We have already found that accused Ghulam Azam is guilty to the offences relating to conspiracy, planning, incitement, complicity and murder of Seru Miah and 3 others mentioned in charge Nos. 1 to 5 in the commission of those crimes against humanity and genocide as specified in section 3(2) of the Act. Now a pertinent question is before us to decide what punishment can be awarded to the accused which shall meet the ends of justice reflecting the requirement of law as well as aspiration of the victims’ families of the country.

391. In Blaskic case, the Tribunal observed that if the elements of military commanders or civil superiors are fulfilled, the superiors are liable to be awarded heavier sentences even than that of the actual perpetrators. In the context of trial relating to international crimes, we are of the opinion that the plea of old age or belated prosecution does not diminish the guilt of the accused.

392. Having considered the attending facts, legal position and the gravity and magnitude of the offences committed by the accused, we unanimously hold that he deserves the highest punishment i.e. capital punishment as provided under section 20(2) of the ICT Act of 1973. But in the same breath, we cannot overlook the mitigating circumstances which have come up before us for its due consideration.

393. Undisputedly, accused Ghulam Azam is now aged 91 years. It is evident on record that the accused was taken into custody on 11 January 2012 by the order of this Tribunal but the Prison authority sent him to the Prison cell of Bangobandhu Sheikh Mujib Medical University (BSMMU) Hospital on the same date for his proper treatment. Since then the accused has been kept in the said prison cell for providing him constant treatment to the complications due to his old age.

394. Facts remain that the accused is now an extremely old man of 91 years coupled with his long ailment. These two aforesaid factors are considered by this Tribunal as an extenuating circumstances for taking lenient view in the matter of awarding punishment to the accused. Having regards to the above facts and circumstances, we are of agreed view that the ends of justice would be met if mitigating sentence is inflicted upon the accused. Hence it is ORDERED, that accused Professor Ghulam Azam, son of late Maulana Ghulam Kabir of village- Birgaon, Police Station- Nabinagar, Dist. Brahmanbaria, at present 119/2 Kazi Office Lane, Mogbazar Police Station-Ramna, Dist. Dhaka, being a defacto superior is held guilty to the offences mentioned in all charge Nos. 1, 2, 3, 4 and 5 for the Commission of crimes as specified in section 3(2) read with section 4(1), 4(2) of the International Crimes (Tribunals) Act, 1973. The accused is awarded punishment showing period 242 of imprisonment for each charge proportionate to the gravity of offences as mentioned below:- Charge Nos-1 and 2. The accused is held guilty to the offences of conspiracy (charge No. 1) and planning (charge No. 2) together in the commission of crimes as specified in section 3(2) read with section 4(2) of the ICT Act of 1973 and for the afore-said two offences, he is convicted and sentenced to suffer imprisonment for ten years each of the offences totalling 20 years under section 20(2) of the said Act. Charge No.3 The accused is held guilty to the offence of incitement in the commission of crimes as specified in section 3(2) read with section 4(2) of the ICT Act of 1973 and he is convicted and sentenced to suffer imprisonment for 20 years under section 20(2) of the said Act. Charge No.4 The accused is held guilty to the offence of complicity in the commission of crimes as specified in section 3(2) read with section 4(2) of the ICT Act of 1973 and he is convicted and sentenced to suffer imprisonment for 20 years under section 20(2) of the said Act. Charge No.5 The accused is held guilty to the offence of murdering Seru Miah and 3 others in the commission of crimes against humanity as specified in section 3(2)(a) read with section 4(1) of the ICT Act of 1973 and he is convicted and sentenced to suffer imprisonment for 30 years under section 20(2) of the said Act. The total period of sentences of five charges is 90 years. 243 The period of aforesaid sentences awarded to the accused shall run consecutively or till his death. Let a certified copy of the judgment be furnished to the convict and the prosecution free of cost at once. Let another copy of the judgment be sent to the District Magistrate, Dhaka for information and necessary action. Let the convict accused be sent to the Central Jail, Dhaka for under going above-mentioned sentences along with a conviction warrant accordingly. Before parting with the case, we express our gratitude to the learned lawyers of both the parties for their sincere co-operation and assistance to us.

Ghulam Azam Judgement, Part 6: Command and Civilian Superior responsibility

This is the sixth part of the judgment given by the tribunal on the trial of Ghulam Azam. This part deals with issues relating to 'command responsiblity'. [Please note that some Bangla text is not included but will be added when translated. It is indicated by XXX]


To see part one - dealing with introductory issues
To see part two - dealing with charges relating to conspiracy and planning
To see part three - dealing with charge relating to incitement

To see part four - dealing with charge relating to complicity

To see part five - dealing with charges relating to murder
To see part seven - dealing with sentence

A Theoretical Discourse on Command Responsibility and Civilian’s Superior Responsibility:
308. It is an agreed position that the present case is a unique of its kind before the International Crimes Tribunal, Bangladesh as it involves complex legal question as to civilian’s superior responsibility, command responsibility and other intricate legal issues that are unusual and unbeknown to this case to settle the legal interpretation/position of these almost alien legal principles. We cannot be oblivious of the fact that the whole nation has been waiting for what this Tribunal opines regarding these issues. We are also concerned of the legal system of Bangladesh. We are vested with this arduous and glorious task to understand and explain these complex legal issues in the context of our country and of the Act itself. The jurisprudence with that regard in our country is still in its embryonic stage. 196 Hence, we took this opportunity in the fact that the international community is also curious to see how this got any civilian superior responsibility as has been charged for, it is important to explain elaborately what doctrine of command responsibility is, what is civilian superior responsibility and what elements are to be fulfilled to hold a person responsible for the acts of his subordinates. Tribunal resolves and allocate responsibility of the atrocities that took place in 1971 in the territory of Bangladesh.

Command Responsibility in general:
309. Often, the repeated and systematic occurrence of crimes in war-time contexts happens to be the result of a criminal policy or plan from the highest echelons exercising command and control over the perpetrators. However, the commission of crimes on a large scale or the systematic violations of the laws of war can also be, on the contrary, the ‘trivial’ consequence of the lack of a clear chain of command and control. Both the exercise of the powers of command and control (in the case of criminal plan or policy), and the failure to exercise them may imply criminal responsibilities upon superiors and commanders in the presence of the specific requirements under international law. “Command responsibility is an umbrella term used in military and international law to cover a variety of ways in which individuals in positions of leadership may be held accountable” (M. Damaska, The shadow side of command responsibility, The American Journal of Comparative Law, 2001, p.455).
310. Under International Law and International Humanitarian Law (IHL) commanders have a duty to ensure that their troops respect that body of law during armed conflict and hostilities. Failure to do so may give rise to liability. A mere “breach of duty,” whereby the commander has not fulfilled the responsibilities expected of his rank, is usually dealt with through disciplinary action. However, where a commander fails to prevent or punish violations of IHL by subordinates, criminal proceedings are likely, and the punishment to be meted out will reflect the gravity and nature of the crime committed by the subordinate ( ICTY Appeals judgment in Celebic’ Case, Case No. IT-96-21-A, 20 February 2001, at 226).

311. From an IHL perspective, it took another thirty years or so to have these principles codified in a convention. By 1977 the doctrine of command responsibility was accepted as customary international law and was codified in the Additional Protocol I to the Geneva Conventions, relating to the International Armed Conflicts. Its status as customary law was confirmed with the explicit inclusion of command responsibility in article 7(3) of the Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY) and article 6(3) of the Statute of the International Criminal Court (ICC). It should be noted that international law recognizes the principle of command responsibility both in international and in internal armed conflict.

Conditions of establishing command responsibility:
312. From the jurisprudence emanating from the international criminal Tribunals, it is generally agreed that four elements must be proven for a 198 person to be held responsible as superior. In general terms, these are: (1)an international crime has been perpetrated by someone other than the accused;(2) there existed a superior-subordinate relationship between the accused and the perpetrator;(3) the accused as a superior knew or had reason to know that the subordinate was about to commit such crimes or had done so; and (4) the accused as a superior failed to take the necessary and reasonable measures to prevent such crimes or punish the perpetrator. ( Prosecutor vs. Oric, ICTY, Case number-IT 03-68-T293).

Superior subordinate relationship:313. Depending on the origin of the command structure (or, the source of authority), the superior subordinate relationship may be established in two independent ways (1) De-jure: if the commander has structural authority over its subordinates and (2) De Facto: if the commander got no lawful or structural authority over the subordinates, but in reality got actual command and influence over the subordinates. How a commander or superior may de facto exercises commands over his subordinates/followers will be elaborately explained in the later part of this judgment.

Development of Command or Superior Responsibility:314. Provably the most famous and controversial case of conviction on the basis of the principle of command responsibility is that of Japanese General Yamashita, who was condemned to death by an American military tribunal because he “unlawfully disregarded and failed to discharge his duty as a 199 commander to control the operations of the members of his command, permitting them to commit the brutal atrocities and other high crimes” (The United Nations War Crimes Commission, Law Reports of Trials War Criminal 1974-48 (Law Reports), vol. IV, p.3 ff). According to W.H. Parks, the most important legacy of the Yamashita trial is to have recognized, with regard to military officers in positions of command, the existence of an affirmative duty to take such steps as are within their power and appropriate to the circumstances to control those under their command for the prevention of violations of the law of war. The doctrine of command responsibility was largely used against Japanese war criminals during the Tokyo trial. In particular, abuses of prisoners were attributed to both civil and military superiors for having failed to prevent them.

315. With regard to the jurisprudence after Second World War, it is interesting to note that for the first time not only military but also civilian authorities were found guilty of war crimes and crimes against humanity committed by underlings. However, the development of civilian’s superior responsibility will be discussed later. The First international instrument that expressly codified command responsibility is article 86(2) of the I Additional Protocol of 1977 to the 1949 Geneva Conventions.

316. Command responsibility was then included in the Draft Code of Crimes against peace and Security of Mankind of 1996 elaborated by the International Law Commission; in its commentary the Commission stated 200 that military commander can be held criminally liable for the unlawful conduct of his subordinates if he contributes directly or indirectly to the commission of a crime by his subordinates and that he “ contributes indirectly to the commission of a crime by his subordinates by failing to prevent or repress the unlawful conduct.”

ICTY and ICTR jurisprudence:
317. The most significant developments regarding this mode of liability were achieved through the extensive jurisprudence of the two International ad hoc Tribunals. Both the statutes of the ICTY and ICTR contain an express provision on superior responsibility in article 7(3) and article 6(3), which states that: “The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superiors of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.”

318. It is undisputed today that superior responsibility extends also to civilian political leaders, as Heads of State or party or Government officials or other civilians holding positions of authority. The trial chamber of the ICTR in Kayishema and Ruzindana (ICTR-95-1-T) judgment holds that…… 201 “The principle of superior responsibility applies not only to military commanders, but also encompasses political leaders and other civilian superiors in positions of authority. The crucial question is not the civilian status of the accused, but the degree of authority he or she exercised over his or her subordinates.”

319. Moreover, not only de-jure but also de-facto commanders and superiors may incur criminal liability under this doctrine. The judges of the ad hoc Tribunals, in fact, consistently found that the mere absence of formal legal authority over the perpetrators of the crimes does not rule out the imposition of superior responsibility on the subject, as long as he exercised effective control over them, in the sense having the material ability to prevent and punish the commission of offences. No doubt, a chain of command or authority and control is a necessary prerequisite to impute superior responsibility. However, according to this jurisprudence, criminal liability can attach to the superior also with regard to acts perpetrated by subjects who are not directly subordinate to him in the chain of command.

Superior responsibility under article 28 of the Rome Statute of the International Criminal Court:
320. Superior responsibility under article 28 of the Rome Statute of the International Criminal Court (ICC) provides for an independent basis for individual liability distinct from the other modes of liability under article 25 of the Statute. According to the wording of article 28, a superior shall be 202 criminally responsible for crimes within the jurisdiction of the Court committed by his subordinates as a result of his failure to exercise properly where he knew or should have known that the crimes were being committed, or about to be committed and he failed to take all necessary and reasonable measures within his power to prevent or repress the crime or to submit the matter to the competent authorities. Command Responsibility of Civilian Superiors:

321. Yael Ronen have rightly pointed out the doctrine of superior responsibility grew out of the military doctrine of command responsibility. By now it has been part of the customary international humanitarian law that the military doctrine of command responsibility is also applicable for the civilian superiors in slightly varied form. Article 87(1), 86(1) and 86(2) of the Additional Protocol I to the Geneva Conventions encompasses the doctrine of superior responsibility. Apparently these provisions are not limited to military superiors only. ICTR Statute Article 6(3) and ICTY Statute Article 7(3) (hereinafter Article 6/7(3) contain a provision resembling Article to 86(2).

322. Both tribunals have interpreted their respective statutes in numerous cases before them and concluded that the responsibility enshrined in their respective statutes were for both military and civilian superiors. For the ICTY, Delalic, Case No. IT-96-21-T, 363, For the ICTR, Prosecutor, v. Bagilishema, Case No. ICTR-95- 1A- T, Judgment, 42 (June.7, 2001). 203 Section 4(2) of the International Crimes Tribunal Act, 1973 Bangladesh, provides that: “4(2). Any commander or superior officer who orders, permits, acquiesces or participates in the commission of any of the crimes specified in section 3 or is connected with any plans and activities involving the commission of such crimes or who fails or omits to discharge his duty to maintain discipline, or to control or supervise the actions of the persons under his command or his subordinates, whereby such persons or subordinates or any of them commit any such crimes, or who fails to take necessary measures to prevent the commission of such crimes, is guilty of such crimes.”

323. Considering the sentence structure and wording of section 4(2) of the ICT Act, 1973 and also the context and intention of the legislators it is for the tribunal to interpret whether section 4(2) of the Act imposes superior responsibility to the civilian superiors. We will explain it in the later part of the judgment.

324. The history of the doctrine of command responsibility dates back to antiquity, but international prosecutions based on the doctrine did not occur until the aftermath of World War. II. Post- World War II jurisprudence was overwhelmingly concerned with superiors in the military. The criminal responsibility of civilians only arose in full force in the ICTY and ICTR. 204

325. Despite the absence of express provisions on superior responsibility in its statute, the International Military Tribunal for the Far East (Tokyo Tribunal) convicted a number of individuals –both military personnel and civilians-on that basis. Count 55 in Tokyo tribunal alleged that the defendants “deliberately and recklessly disregarded their legal duty to take adequate steps to secure the observance and prevent breaches” of the laws of war. Prime Minister Tojo, and Foreign Ministers Hirota and Shgemitsu were convicted on the basis of civilian’s superior responsibility in the Tokyo tribunal. Foreign Ministers Hirota and Shigemitsu were convicted under Count 55 for their failure to adequately act upon reports of war crimes. The Tribunal held that the circumstances made Shigemitsu suspicious that the treatment of the prisoners was not as it should have been, yet he took no adequate steps to investigate the matter.The Tribunal emphasized Shigemitsu’s failure to take adequate steps to investigate the matter “although he, as a member of government, bore overhead responsibility for the welfare of prisoners.” It held both ministers responsible for failing to induce the government to discharge its obligation to ensure the well- being of prisoners-of –war and civilians under its control.

ICTY Case Law:
326. In Prosecutor v. Aleksovski, Case No. IT-95-14/1-T, and in Prosecutor v. Delalic, Case No. IT-96-21-T, the defendants were the de facto commanders of prison camps where combatants and civilians were detained. They were responsible for conditions in the camps, with de facto authority 205 over the officers, guards, and detainees. In both cases, the defendants were held responsible for failing to repress crimes that their subordinates had committed. They were also held directly responsible for other crimes. In a few other cases where civilians were indicted under the principle of superior responsibility, they were all acquitted.

327. The ICTY Trial Chamber found in both the cases of Cordic and Boskosk; that though they were civilian leaders but they did not have effective control over the direct perpetrators of the Crimes and thus both of them were acquitted of their responsibilities as superiors. ICTR Case Law: 328. Jean Paul Akayesu was bourgmestre of Taba. He was indicted for both direct and superior responsibility for crimes against humanity and war crimes committed by the Interahamwe, whom the judgment referred to as “armed local militia.” According to the indictment, Akayesu knew that the crimes were being committed, facilitated them, and encouraged them. The ICTR found that “a superior/subordinate relationship existed between the Accused and the Interahamwe who were at the bureau communal.” The ICTR then noted that there was no allegation in the indictment that the Interahamwe were subordinates of the accused, although the indictment relied on Article 6(3). Accordingly, it acquitted Akayesu of responsibility as a superior ( Prosecutor v. Akayesu, Case No. ICTR-96-4-T).

329. Two other civilian defendants were Serushago and Musema. In the case of Prosecutor v. Serushago, case No.98-39-S, accused Omar Serushago was a defacto leader of the Interahamwe in Gisenyi. The ICTR convicted him under both Articles 6(1) and 6(3) of genocide and crimes against humanity for having ordered the Interahamwe to execute victims. In the case of Prosecutor v. Musema,Case No. ICTR-96-13-A, accused Alfred Musema was the director of the public Gisovu Tea Factory and member of various regional government authorities that addressed socioeconomic and development matters. According to the indictment, at various locations and times, Musema directed armed individuals to attack Tutsis seeking refuge. He also personally attacked and killed persons seeking refuge; committed acts of rape; and encouraged others to capture, rape, and kill Tutsi woman. The ICTR convicted Musema of genocide and crimes against humanity. The Trial Chamber found him responsible under Article 6(1) of the Statute for having ordered and, by his presence and participation, aided and abetted in the crimes. In addition, the Chamber found that Musema incurred superior responsibility under Article 6(3) of the Statute with respect to acts by employees of the Gisovu Tea Factory, whom the Chamber identified as Musema’s subordinates.

330. Ferdinand Nahimana was born in Rwanda in 1950. From 1977 until 1984, he held various posts at the National University of Rwanda. He was also member of the (MRND) political party. In 1990, he was appointed Director of the Rwandan Office of Information and remained in that post 207 until 1992. He and others then initiated the establishment of the Radio Television Libre des Mille Collines (RTLM) radio station, owned largely by members of the MRND party. RTLM started broadcasting in July,1993 and was a popular source of information. Its broadcasts engaged in ethnic stereotyping, branding Tutsis as the enemy and Hutu opposition members as their accomplices. After April 6, 1994, the virulence and the intensity of RTLM broadcasts propagating ethnic hatred and calling for violence increased, and the ICTR found that certain RTLM broadcasts in that period constituted direct and public incitement to genocide. The ICTR found that Nahimana had been a superior of the RTLM staff. It also found that Nahimana knew or had reason to know that his subordinates at RTLM were going to engage in incitement to genocide. For these reasons, it convicted him on superior responsibility grounds for not having taken reasonable and necessary steps to prevent the incitement or punish its perpetrators (Prosecutor vs.Nahimana, Case No. ICTR-99-52-T).

331. The above case references from the ICTY and ICTR show that the doctrine of command responsibility is also applicable to the political leaders and other civilian superiors in position of authority. The crucial question is not the civilian status of the accused but the degree of authority he or she exercised over his or her subordinates. By the adaptation of this civilian superior responsibility in numerous international instrument and through volumes of judgments from international tribunals it has now become part of customary international law that the military doctrine of command 208 responsibility is also applicable to civilians in the form of civilian superior responsibility.

XXI. A CIVILIAN SUPERIOR NEED NOT TO BE THE OFFICIAL SUPERIOR OF THE PERPRETATORS RATHER A DE FACTO COMMAND OVER THE PERPERTRATORS IS ENOUGH TO HOLD SOMEONE RESPONSIBLE: 
332. For a person to be regarded as a superior, he must have a position of command (in a military context) or authority a more general term, applicable in both military and civilian settings. Subsequent jurisprudence appears to have dropped two elements of the Celebici interpretation. The first is the relevance of de facto authority to quasi-state structure as a substitute for de jure authority in true-state structure. The other is the requirement of hierarchy or rank. Nonetheless, the ICTY has on numerous occasions such as in Prosecutor v. Delalic, Prosecutor v. Oric, Prosecutor v. Kordic, Prosecutor v. Kayishema indicated that where the influence reaches the level of “effective control,” it may also fulfill, of replace, the requirement of de facto authority. For example, in Aleksovski, the trial chamber said that “[effective] authority can be inferred from the accused’s ability to give [the direct perpetrators] orders and to punish them in the event of violations.” Similarly, in Musema, the ICTR held that “a superior’s authority may be merely de facto, deriving from his influence or his indirect power.” It added that “[t] he influence at issue…. Often appears in the form of psychological pressure.” In both cases, influence went to the issue of authority rather than to that of effective control.

333. In the case of Prosecutor v. Nahimana, Case No. ICTR-99-52-T, The ICTR accepted as fact that Nahimana held no official function at TRLM.208. This led to the question of whether he had exercised de facto authority. The tribunal answered this in the affirmative, relying on several factors. First, the ICTR found that Nanimana was “the brain behind the project” and “the boss who gave orders.” This description referred to Nahimana’s status in RTLM prior to the commission of the crimes. It expressly noted that Nahimana’s membership in the RTLM’s Steering Committee had not vested him with de jure authority but did suggest “defacto a certain general authority within RTLM.” Nahimana had played a role of primary importance in the creation of RTLM in 1993 and had control over RTLM company finances. Moreover, Nahimansa’s de facto authority was largely a substitute for the Steering Committee’s de jure authority. Thus, although RTLM was a private organization rather than a state organ, the ICTR could rely on the “trappings” of de jure authority. The ICTR’s conclusions on Nahimana’s superior responsibility are thus straightforward and raise no particular difficulties to hold that de facto authority over the actual perpetrators is enough to hold someone responsible for the crime committed by his subordinates. The knowledge requirements: military commanders vs. other superiors.

334. Traditionally, the extent and nature of the “knowledge” required of a superior regarding the actions of subordinates was the same for both military commanders and civilian superiors, irrespective of office held for both categories of superiors to attract liability, it had be shown that the superior either knew or had reason to know. Interestingly, the Rome Statute of the International Criminal Court (ICC), in its Article 28, advances two separate standards. For military commanders, the test remains that the person either knew or, owing to the circumstances at the time, should have known that the forces under his or her command were committing or about to commit such crimes. They should have known is not dissimilar to the traditional had reason to know. By contrast, for other superiors- that is no-military commanders- to incur liability, it must be shown that the person either knew, or consciously disregarded information that clearly indicated that the subordinates were committing or about to commit such crimes. This approach was followed in the ICTR’s Kayishema &Ruzindana case.

335. The ICC Statute thus introduces additional elements that must be met to establish that a non- military superior had the requisite mens rea to be held liable through command responsibility. It must be shown not only that the superior had information in his possession regarding acts of his subordinates, but that the superior consciously disregarded such information, in other words, that he chose not to consider or act upon it. The information must also clearly indicates that the subordinates committed or were about to commit the crimes. To some extent this goes further than the majority standard elaborated by the ICTR or the ICTY by which the information need merely put the superior on notice of possible unlawful acts by his subordinates. An element of certainty rather than possibility vis-à-vis the commission of the crimes will therefore have to be met under the ICC Statute for non-military superiors. However this can not be said to be the part of customary international law.

336. By contrast, the International Crimes Tribunal Act, 1973 in its section 4(2) doesn’t require the commander or superior to have knowledge or had reason to know that his/ her subordinates were committing such crimes or about to commit such crimes. The prosecution may argue that since the law itself is silent about the knowledge requirements, the Tribunal can not import an additional element of knowledge to hold a superior responsible for the acts of his subordinates. However, the tribunal thinks that it would be highly repugnant to common sense and natural justice to hold some one responsible for the crimes committed by his subordinates which was unbeknown to him. The crux of the doctrine of superior responsibility (be it civilian’s or be it military) is that the superior has a specific duty to maintain/ ensure that his/her subordinates respect the body of International Laws. Deviations from this responsibility may incur criminal liability upon the superiors. The liability to maintain the subordinates in line with the prescription of law of the liability to punish the violations of it arises only if the superiors have knowledge or have reason to know that such crimes were committed or were about to commit.

337. Section 4(2) of the ICT Act, 1973 provides that any commander or superior officer, who orders, permits, acquiesces or participates in the commission of any of the crimes specified in section 3 or is connected with any plans and activities involving the commission of such crimes or who fails or omits to discharge his duty to maintain discipline, or to control or supervise the actions of the persons under his command or his subordinates, whereby such persons or subordinates or any of them commit any such crimes, or who fails to take necessary measures to prevent the commission of such crimes, is guilty of such crimes.

338. Apparently section 4(2) is silent about the knowledge part of the superiors. But this tribunal thinks that the “Judges of the common law shall supply the omission of the legislatures.” The tribunal is quite competent to import an additional element of knowledge to hold the superior responsible for the crimes committed by his subordinates if it is found that not doing so would frustrate the ends of justice and doing so would be conforming to natural justice and customary international laws.

339. However, we have to bring it in our mind that knowledge is an abstract thing and there can not be any concrete proof or evidence to show that a particular thing was within someone’s knowledge. Hence the Tribunal has to infer the knowledge of the accused from the facts, circumstances and from the context of the case. Especially if the Tribunal has to examine constructively as to whether the accused had reason to know of a particular fact, it has to infer it from the facts, circumstances and the context of the case. The burden is more upon the Tribunal to infer than on the prosecution to produce evidence specifically, as the knowledge requirement was primarily not mentioned in section 4(2) of the ICT Act, 1973 explicitly. This Tribunal will evaluate the produced evidence to conclude whether the accused knew or had reason to know that his subordinates were committing or were about to commit crimes mentioned in section 3(2) of the Act in due course of time.

Heavier sentences for superiors:
340. International humanitarian law and international criminal justice place upon superiors a greater responsibility than that of their subordinates in ensuring that the law is not violated. Superiors, by virtue of their elevated position in the hierarchy, have an affirmative duty to ensure that IHL is duly respected and that breaches are appropriately repressed. Their failure to do so can be interpreted as acquiescence in the unlawful acts of their subordinates, thereby encouraging further breaches and developing a culture of impunity. Courts have taken into account the “command position” of an accused in sentencing. Whilst recognizing that the length of a sentence is to be determined on the basis of the nature and gravity of the crime, case law of the international criminal tribunals seems to dictate that the status as a superior will in itself be considered an aggravating factor.

341. A command position may justify a harsher sentence, in particular if the accused held a high position within the civilian or military command structure. In Prosecutor v. Jean Kamabanda, Case No.ICTR 97-23-S, and in Prosecutor v. Jean Paul Akayesu, Case No. ICTR -96-4-T, The Tribunals have explained that when a commander fails in his duty to prevent the crime or to punish the perpetrator thereof, he should receive a heavier sentence than the subordinates who committed the crime. The justification in imposing a harsher sentence stems from the fact that where a commander fails to punish his subordinates for committing crimes or to prevent them from doing so, this creates an impression of tolerance, acquiescence or even approval vis-à-vis the actions of the subordinates. The Tribunals have concluded that it would be inconsistent to punish a simple perpetrator with a sentence equal to or greater than that of the commander.In the case of Prosecutor v. Tihomir Blaskic, Judgment, Case No. IT-95-14-T, the Tribunal observed that: “Therefore, when a commander fails in his duty to prevent the crime or to punish the perpetrator thereof he should receive a heavier sentence than the subordinates who committed the crime insofar as the failing conveys some tolerance or even approval on the part of the commander towards the commission of crimes by his subordinates and thus contributes to encouraging the commission of new crimes. It would no in fact be consistent to punish a simple perpetrator with a sentence equal or greater to that of the commander.”

342. As such, the consequences of a person’s acts are necessarily more serious if he is at the apex of a military or political hierarchy and uses his position to commit crimes. Because he is a leader, his conduct is that much more reprehensible. In the case of Prosecutor v. Clement Kayisheme &Obed Ruzindana, Sentence, Case No. ICTR-95-1-T the tribunal opined that : “This Chamber finds as an aggravating circumstance that Kayihema, as Prefect, held a position of authority. This chamber finds that Kayishema was a leader in the genocide in Kibuye Prefecture and this abuse of power and betrayal of his office constitutes the most significant aggravating circumstance.”

343. The case law points to a simple conclusion, namely that civilian and military commanders are deserving of harsher sentences than their subordinates. The mere fact of being in a position of responsibility will be seen as an aggravating factor. In Blaskic case the Tribunal observed:- “Command position must therefore systematically increase the sentence or at least lead the Trial Chamber to give less weight to the mitigating circumstances, independently of the issue of the form of participation in the crime.” If all elements are fulfilled, the superiors are liable to be awarded heavier sentences even than that of the actual perpetrators. The scope of section 4(2) of the International Crimes (Tribunals) Act 1973: Is section 4(2) applicable to civilian superiors as well?

344. It has been settled well that the International Crimes (Tribunals) Act 1973 is applicable to civilians as well. Now, the question as to whether section 4(2) of the Act encompasses a civilian superior and gives the Tribunal jurisdiction to hold a civilian superior responsible for the crimes committed by his subordinates is yet to be resolved categorically.

345. It was mentioned earlier that the doctrine of command responsibility is also applicable to the political leaders and other civilian superiors in position of authority. The crucial question is not the civilian status of the accused but the degree of authority he or she exercised over his or her subordinates. It is also a settled position of law that civilian superior responsibility has now become a part of customary international law. So the question as to whether there is scope to hold a civilian superior responsible under section 4(2) of the Act should have not been arisen at all. But the defence emphatically argued that the wording and the sentencing pattern of section 4(2) of the Act is quite dissimilar to that of article 6(3) of the ICTR statute, article 7(3) of the ICTY statute and article 28 of the Rome statute of the ICC. The defence continued to argue that the use of the word “Superior officer” instead of ‘Superior’ in section 4(2) of the Act bear a clear indication of the intention of the legislators that section 4(2) was meant for military commander only. To substantiate their argument the defence referred to the resembling article 6(3) of the ICTR statute, article 7(3) of the ICTY statute, article 28 of the Rome statute and numerous domestic legislation where the word ‘officer’ was shown and defined to indicate only military personnel or person holding government office.

346. Both the ICTR and the ICTY statute used only superiors instead of superior officer unlike section 4(2) of the ICT Act, 1973.Both the ICTY and ICTR interpreted the term superior to encompass military and civilian superiors. Article 28 of the Rome statute also provides that: a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by his subordinates as a result of his failure to exercise control properly where he knew or should have known that the crimes were being committed, or about to be committed, and he failed to take all necessary reasonable measures within his power to prevent or repress the crime or to submit the matter to the competent authorities. Thus it is shown that none of the above three statutes used the tem superior officer. Rather they used the term superior to include civilian superiors.

347. So the term superior officer used in section 4(2) of the Act deserves an interpretation and explanation by this Tribunal. What is the significance of this word “officer”? Section 4(2) of the ICT Act, 1973 provides that: “Any commander or superior officer who orders, permits, acquiesces or participates in the commission of any of the crimes specified in section 3 or is connected with any plans and activities involving the commission of such crimes or who fails or omits to discharge his duty to maintain discipline, or to control or supervise the actions of the persons under his command or his subordinates, whereby such person or subordinates or any of them commit any such crimes, or who fails to take necessary measures to prevent the commission of such crimes, is guilty of such crimes.”

348. To interpret section 4(2), we have to bear in mind that the cardinal principle of interpretation is that a provision of a statute is not be construed in isolation; a statute must be construed as a whole in its proper context. Generally speaking, the context with reference to a provision of statute consists of the preamble, the prior state of the law, the provision of other statutes in pari material on the same matter, the evil that the provision is meant to cure or remedy and the other provision of the said statute which together throw light on the meaning of the provision intended by the legislature. So, when a question arises as to the meaning of any provision of a statute it should be construed reading the statute as a whole so that all the provision of the statute can be operative and no part of it becomes superfluous (World Tel Bangladesh Ltd vs. Bangladesh 58 DLR 14, Janab Ali vs. State 12 DLR 808).

349. Now, if we read the International Crimes (Tribunals) Act 1973 as a whole, and in special section 4(2) and section 5(2) together, we will see that the words superior officer used in section 4(2) have been used in isolation of the rest of the statute bearing no special meaning to indicate military officers only. Section 5(2) provides: that the fact that the accused acted pursuant to his domestic law or to order of his government or of a superior shall not free him from responsibility but may be considered in mitigation of punishment if the tribunal deems that justice so requires. What is noteworthy is unlike section 4(2), section 5(2) does not use the word Officer. If the intention of the legislators was to supply emphasis on the word Officer in section 4(2) for a special meaning there must have been a reiteration of the word officer in section 5(2) as well. The word Officer was not used in section 5(2) which clearly indicates that the use of the word Officer in section 4(2) is mere incidental having no special significance.

350. Of all the rules of interpretations the paramount rule remains that every statute, even every world of the statute is to be expounded according to its manifest and expressed intention. (For references, see Attorney General for Canada vs, Hallett &Carey ltd, 1952, AC 427). In SA Haroon vs. collector of Custom, the Pakistan Supreme Court observed that: “all rules of interpretation have been devised as aids to the discovery of the legislative intents behind an enactment. Where the words are plain and unambiguous, that intent can best be judged by giving full effect to the ordinary grammatical meaning of those words. But when this is not the case, an attempt should be made to discover the intent by considering the relevant provisions in the context of the whole Act in which it appears an by having regard to the circumstances in which the enactment came to be passed, the previous state of the law, the mischief sought to be suppressed and the new remedy provided are relevant factors to be given due considerations.”(11 DLR, SC, 200).

351. Mr. Imran Siddique, the learned defence counsel submits that the words “Any commander or superior officer” have been used in section 4(2) only to indicate military officer and not indicating any civilian superior, if the legislators had such intention they could have amended section 4(2) by inserting ‘civilian superior’ as amended section 3(1) by inserting “individual of group of individuals” (civilian) in 2009.

352. Let us find out the true meaning of the word Officer used in section 4(2) of the Act, we are to take the whole statute together and construe the said word as a part of the Act. We shall have to interpret the word Officer literally at the first instance, but if we find that as a result of such literal interpretation certain consequence do arise which in result will frustrate the actual intention of the enactment of the Act, we will then inquire the intention of the law makers to see if there is any special significance of that word. We shall have to find the answer from a consideration of the object of the legislation and the mischief it was enacted to remedy. Doing so, we have seen that the Act was not passed to prosecute the military officials only. Section 3(1) of the Act made it clear that this Tribunal got jurisdiction to try and punish any individual or group of individuals irrespective of his/her civilian or military status. Even a plain reading of the introductory speech of the then law minister’s statement in the parliament would suggest that the Act is an open ended legislation so far civilian and military status of the accused is concerned. It is unconceivable to hold that the legislators intended to hold a civilian personally liable for his crimes and reserved superior responsibility for only the military personnel. The intention of the legislation can be found in section 3(1) of the Act which is open ended for both civilian and military persons. So if there exists two alternative interpretations of a word of which one enable the Tribunal to hold a civilian superior responsible for the crimes committed by his subordinates and the other exclude the jurisdiction of the court over civilian superiors, the Tribunal will lean to accept the previous one as it would be in conforming with the intention of the legislation. Thus, if we read section 3(1) and section 4(2) of the Act together, we will see that the word Officer was not meant to be army military officers only. Rather a person who holds an office in civilian capacity in any organization can be called as officer. It will not be irrelevant to mention that the learned counsellors for the litigant parties are also called as the officers of the court. Ameer (Head) of a political party is no doubt a post and the person in that post is certainly holding an office for the purpose of this Act. Hence, the then Ameer of Jamat-e-Islami is a superior officer in its true sense for the persons with whom he had a superior subordinate relationship.

353. In present case, we shall have to consider the established legal principle of customary international law that a civilian superior can be held responsible for the acts of his subordinates. By the adaptation of civilian superior’s responsibility in numerous international instrument and through volumes of judgments from international tribunal it has now become part of customary international law that a civilian superior can be held responsible for the crimes committed by his subordinates. So, if there exists two alternative interpretation of the word Officer used in section 4(2) of the Act of which one is compatible with the customary international law and another does not, the tribunal will accept the previous one. In that point of view, also, the word Officer used in section 4(2) of the Act can not be given any meaning so that it excludes civilian superiors.

354. In conclusion, we have no hesitation to hold that section 4(2) is an open ended section so far military and civilian status of the accused is concerned. We hold that the superior responsibility mentioned in section 4(2) of the Act encompasses civilian superiors as well.

XXII. The status of accused Ghulam Azam 355. From the submissions of the learned lawyers of both the parties as well as from the documents submitted by both the parties, it is an admitted fact that accused Ghulam Azam was the Ameer (Head) of the then East Pakistan Jamaat-e-Islami during 1969 to 1971. It is also undisputed that the accused was a prominent member of the 140-member central peace committee which was also published in the Daily Purbodesh on 11.4.1971 (Ext.101). It is also undisputed that he was a member of the 21-member Executive committee of the said central peace committee and he was also a member of the 6 –member sub-committee of the said Executive committee. Newspaper clippings (Ext. Nos. 41,57,59) corroborate the inclusion of the accused in the said committees.

356. P.W. 1 Moontassir Uddin Khan Mamun alias Moontassir Mamun, Professor of History Dhaka University, P.W.2 Mahabub Uddin Ahmed (Bir Bikrom) and P.W.3 Sultana Kamal, Advocate have categorically testified that during War of Liberation of Bangladesh the accused was the Ameer of Jamaat-e-Islami as well as influential member of central peace committee who played a significant role in forming Militia Bahinis such as Razakar, Al-Badr, Al-shams and peace committees in colloboration with Pakistan occupation forces. D.W.1 Abdullahil Amaan Azmi, the son of accused Ghulam Azam, has admitted that peace committee was formed in 1971 and his father was one of the members of central peace committee. The evidence as to status of the accused lead us to hold that the accused became an indispensable person as well as defacto administrator to run the civil administration of the then East Pakistan by virtue of his civil superior status.

357. Mr. Emran Siddique submits that undisputedly professor Ghulam Azam was the Ameer of Jamaat-e-Islami during War of Liberation but the alleged Militia Bahinis such as Razakar, Al-Badr, Al-shams, etc. were not subordinate organs of Jamaat-e-Islami and the accused had neither knowledge nor control over the activities of those Bahinis and as such accused’s failure to take measure against the alleged perpetrators does not arise at all.

358. Let us examine some citations from nationally and internationally reputed news reportings as well as citations from books written by renouned writers to have a true picture about the role of the accused and Jamaat-e- Islami during the War of Liberation. In this regard some citations are quoted below: “The Jamaat-e-Islami and specially its student wing, Islami Jamaat-e-Talaba (IJT) joined the military’s efforts in May 1971 to launch two para military counter insurgency units. The IJT provided a large number of recruits. The two special brigades of Islamist caderes were named Al-shams (the sun in Arabic) and Al-Badr (the moon). A separate Razakars Directorate was established. Two separate wings called Al-Badr and Alshams were recognized. Well-educated and properly motivated students from the schools and Madrasas were put in Al-Badr wing, where they were trained to undertake specialized operations, where the remainders were grouped together under Al-shams, which was responsible for the protection of bridges, vital points and other areas. Bangladeshi scholors accused the Al-Badr and Al-shams militias of being fanatical. They allegedly acted as the, Pakistan army’s death squads and “exterminated leading left wing professors, journalists, litteratears and even doctors.” Source:- “Pakistan between Mosque And Military” written by Hossain Haqqani, page 79 published in 2005, Washington D.C. USA. 359. Mr. Hossain Haqqani, the author of the book, was a adviser to Pakistani Prime Ministers Ghulam Mostafa Jatoi, Nawaz Sharif and Benzir Bhutto. This book is an authoritative and comprehensive account of the origins of the relationship between Islamist groups and Pakistani army. The above citation testifies that Jamaat-e-Islami had played a substantial role in organising and establishing its notorious wing Al-Badr, the death squad in execution of common policy and plan. Admittedly, the accused was the Ameer of East Pakistan Jamaat-e-Islami and as such it is unbelievable that he had no knowledge about the activities of Al-Badr which acted as an armed squad under Jamaat-e- Islami.

360. Fox Butterfield sent a report which was published in the New York Times on 3 January 1972. Now it is Quoted below:- “Al-Badr is believed to have been the action section of Jamaat-e- Islami carefully organised after the Pakistani crackdown last March”. Source:- Bangladesh documents vol-II page 577.
361. Mr. John Stone House, British Labour M.P. told to PTI in an interview in New Delhi on 20 December 1971 which is quoted below:- “during his visit to Dacca yesterday (December-19) he got the names of these Pakistani Army officers who organised the murders and members of Al-Badr, an extremist Muslim Group, who carried out these heinous crimes just before the surrender of Pakistani forces in Dacca”. Source:- The Hindustan Times, New Delhi, 21 December , 1971 published in Bangladesh documents vol. II.
362. The report titled “Butchery By Al-Badr” was published in the PATRIOT, New Delhi on 23 December 1971 which manifestly demonstrates the role of Jamaat-e-Islami and its armed wing Al-Badr that perpetrated the murder of leading intellectuals, the best sons of the soil. The report speaks that:- “When the Pakistanis were over powered, they left the killing to the fascist Al-Badr, the armed wing of Jamaate- Islami. This fascist body has already butchered about 200 leading intellectuals, doctors, professors, and scientists, including such eminent men like Sahidulla Kaiser and Munir Chawdhury.” Source:- ‘PATRIOT’ New Delhi 23 December 1971 also published in Bangladesh Documents page 573.
363. Accused Prof. Ghulam Azam, the Ameer of East Pakistan Jamaat-e- Islami delivered a reception speach at a local hotel which was published in the “Daily Pakistan” on 26.09.1971 under the caption:- XXXXX Source:- Dalil Patra (Govt Pub), volume no.VII page-630-631. Same news also published in the Daily Sangram (Ext.22).
364. It appears from the news report mentioned above, that the accused has candidly admitted that Razakar Bahini and peace committes were formed by the people belonging to Jamaat-e-Islami and he also compelled his two subordinate party leaders to join the Cabinet of Ministers. Though the accused did not hold any portfolio of the government of Pakistan, nevertheless, he could make his party men ministers and he also used to send partymen for forming para-military Bahinis to resist independence of Bangladesh. The mode of exercising power leads us to hold that the accused was the defacto civil administrator of East pakistan in 1971. Accused Prof. Ghulam Azam visited Razakar Training Camp stationed at Mohammadpur Physical Traning Centre and addressed the Razakars stressing the need for joining Razakar Bahini, Muzaheed and Police Bahini during the war of liberation of Bangladesh. Source:- Clipping of the Daily Sangram published on 18.09.1971. (Exbt No-19)
365. The above cited news report gives a clear impression about the civilian superior status that the accused held in 1971. The accused gave religious sermon to the trainee Razakars which indicates that the accused had defacto superior responsibility over the Razakars though he was not designated officer of the department concerned. Accused Prof. Ghulam Azam as chief of the East Pakistan Jamat-e- Islami made a joint statement urging upon the patrotic people of Pakistan to destroy the Indian intruders on sight. The above report was published in the “Dainik Azad” on 08.04.1971. Source:- The clipping of the daily Azad published on 08.04.1971. (Exbt No-36).

366. The above news reporting gives an impression to hold that the accused had administrative authority to direct the people including his subordinates to wipe out Indian intruders i.e. pro-liberation people of Bangladesh.

367. The investigation officer seized a coupon of subscription with other documents fom Bangladesh National Museum, Dhaka on 20.04.2011 under a seizure list. (Ext. No-498). It appears from the said coupon (Ext. No-505) that Jamaet-e-Islami used to collect subscription by using the cupon under the signature of accused Prof. Ghulam Azam for the purpose of protecting Pakistan’s ideology.This document (coupon No-505) testified itself that the accused was one of the defacto rulers of Pakistan, otherwise, a coupon containing the name of accused would not be issued for protection of Pakistan.

368. The Jamaat-e-Islami, a religion based political party and brain child of controversial Islamist thinker Maulana Maududi was significantly pro-active in its mission to destroy the Bangalee nation in the name of safeguarding Pakistan in collaboration with the Pakistan occupation army. We deem it indispensible to get a scenario on the role and stand of the Jamaat-e-Islami in 1971, particularly when it established various militia Bahinis, namely Peace Committee, Razakars, Al-Badrs, Al-shams and Al-Mujaheed, etc. in association with Pakistan Army.

369. The vital role of Jamaat-e-Islami in creating the para-Militia Bahinis is also reflected from the narrative of the book titled “ Sunset at Midday” which is cited below:  “To face the situation, the Razakar Bahini consisting of pro- Pakistani elements was formed. Al-Badr Bahini was formed mainly with the workers of the student wing of Jamaat-e-Islami, named Islami Chhatra Sangha (I.C.S. now Islami Chhatra Shibir). The general public belonging to Jamaat-e- Islami, Muslim League, Nizame- Islami, etc were called Al-shams and the urdu speaking generally known as Biharis were called Al-Mujaheed.” Source:- ‘Sunset at Midday’, written by Mohiuddin Chowdhury a former leader of peace committee of Noakhali District, published in 1998, Karachi Pakistan.
370. The documentory evidence discussed above, bear a testimony that the accused being head of Jamate-e-Islami, exercised his superior power in forming Militia Bahinis namely, Peace Committee, Razakars, Al-badrs and Al-Shams by the members of Jamaat-e-Islami and its student wing Islami Chhatra Shangha. It is also evident, as a religious leader, he had command and control over the members of those Militia Bahinies. It is further evident on record that Pakistan occupation army in collaboration with the said Militia Bahinis launched attacks on unarmed civilian and killed millions of Banglees. On the contrary, the defence could not produce any document to show that the accused as a head of political party ever asked his subrodinates not to kill any unarmed civilian or took dicipliniary measure aganist any member of his party or subordinates to prevent him from committing crimes aganist huminaty or genocide during the War of Liberation .
XXIII. Role of Jamaat-e-Islami during independance struggle of Pakistan and Bangladesh.
371. The history of this sub-continent witnesses that while movement for independence of Pakistan was started, the Ameer of Jamaat-e-Islami Maulana Mawdudi opposed the idea of a separate state for Muslims based on two nation theory. Infact, Muslims of Bengal mainly faught for the independence of a separate homeland for Muslims. As soon as Pakistan got its independence in 1947, the Jamaat-e-Islami claimed itself as only Islamic patriotic political party of Pakistan. While people of East Pakistan again started struggle for self determination and independence, the Jamaat-e-Islami as a political party whole heartedly tried to resist independence of Bangladesh in collaborration with Pakistan occupation army. But as soon as Bangladesh got its independence in 1971at the cost of millions of lives then Jamaat-e-Islami claims itself as a true patriotic party of Bangladesh, terming those pro-liberation parties as to be Indian agents.

372. It is an irony to note that during independence of both Pakistan and Bangladesh, Jamaat-e-Islami played a foul role in two great occasions having no contribution to the creation of the said two states. It can be safely observed that Jamaat-e-Islami utterly failed to realise the pulse of the common people in both the historic occasions mentioned above, probably for the lack of its far-sightness caused by fanaticism.

373. It is gathered from facts of common knowledge and evidence on record that under the leadership of accused Prof. Ghulam Azam almost all the members of Jamaat-e-Islami along with its subordinate organs actively opposed the very birth of Bangladesh in 1971 and after 42 years, it is noticed that some of the anti-libeartion people are still staying in the helm of Jamaat-e-Islami as a result young generation belonging to Jamaat-e-Islami are being psychologically reared up and nurtured with anti-liberation sentiment and communal feeling which is a matter of great anxiety for a nation. There is no proof before the nation that those who played antiliberation role in 1971, have ever changed their attitude towards liberation war by expressing repentance or by showing respect to the departed souls of 3 million martyrs.

374. In the interest of establishing a democratic as well as non-communal Bangladesh, we observe that no such anti-liberation people should be allowed to sit in the helm of Executives of the Governernment, social or political parties including government and non-government organisations. We are of the opinion that the Government may take necessary steps to that end for debarring those anti-liberation persons from holding the said superior posts in order to establish a democratic and non-communal country for which millions of people sacrificed their lives during the War of Liberation.

375. Taking the contextual circumstances coupled with documentary evidence into consideration, we are led to observe that Jamaat-e-Islami as a political party under the leadership of accused Prof. Ghulam Azam intentionally functioned as a ‘Criminal Organisation’ especially during the War of Liberation of Bangladesh in 1971.

XXIV. Conlcusion:
376. It transpires from the foregoing discussions made above and citations mentioned under the caption ‘The status of accused Ghulam Azam”, that admittedly he was the Ameer (Head) of the then East Pakistan Jamaat-e- Islami during 1969 to 1971. It is also undeniable that the accused was the most infulential member of Central Peace Committee which was formed with intent to resist the independence of the contrary. The news reports of the ‘Daily Sangram’ (Ext. 22) and the “Daily Pakistan” dated 26.09.1971 show that the accused sent his party men to join Razakar Bahini and Peace Committees for combating pro-libeartion people. It is well proved that the accused as Ameer of Jamaat-e-Islami exercised his superior power in forming para Militia Bahinis namely, Peace Committee, Razakars, Al-Badr and Al-Shams by the members of Jamaat-e-Islami and its student wing, Islami Chhatra Sangha. It is also proved by deocumentary evidence that Pakistan occupation army in collaboration with Militia Bahinis launched attacks on unarmed civilians and killed millions of Bangalees during the War of Liberation of Bangladesh.

377. From the facts of common knowledge, we hold that any order or direction given by a religious leader like accused Ghulam Azam was always considered as more powerful than that of an Army General. It is found on evidence that para Militia Bahinis were mostly formed by his subordinates and as such their superior-subordinate relationship was duly established.

378. On the contrary, the defence could not produce any document to show that the accused as Ameer of Jamaat-e-Islami ever asked his subordinates not to kill any unarmed civilian nor he took disciplinary measure aganist any member of Jamaat-e-Islami or its subordinates to prevent them from committing crimes aganist humanity or genocide during the War of Liberation. Thus, we hold that the accused as civilian superior is criminally liable under section 4(2) of the Act for the crimes committed by his subordinates as he failed to prevent them from committing atrocities in all over Bangladesh.

379. In the above context, Ms. Tureen Afroz, the learned prosecutor argued that during 1971, accused Prof. Ghulam Azam functioned as the “light house”of atrocities and the rays of such mountainous atrocities quickly spread out all over Bangladesh through his subordinates. In our opinion, the above comment is not unfounded one.

380. Mr.Imran Siddique, the learned counsel for the defence submits that the prosecution could not examine any eye witness to prove the charges brought against the accused and the alleged news reports are the product of hearsay and as such do not carry any probative value for relying upon it.

381. Ms. Tureen Afroz, the learned prosecutor submits that the news reports submitted by the prosecution are more than thirty years old documents and those were reported in the Dailies before begining any litigation, as such those documents bear probative value to rely upon. In support of her contention, she referred to a decision in the case of Trustee of German Township (1953) where the U.S. Court of Appeal (Ohio) admitted an old community newspaper as part of record. The Court of Appeal in the same case held the newspaper admissible because “ it is necessary and trustworthy, relevant and material”.

382. It is undisputed that the provision of secition 19(1) of the Act empowers this Tribunal to admit news report published in news papers and other materials in evidence if it deems to have probative value. Therefore, we hold that news report based on hearsay evidence is to be weighed in the context of its credibility. Keeping this legal position in mind, we are of the opinion that the news reports as old evidence carry significant probative value which tends us to hold that accused Prof. Ghulam Azam as civilian superior masterminded all the atrocities committed in the soil of Bangladesh through his subordinates in 1971, and we are convinced to hold that accused Prof. Ghulam Azam was the pivot of crimes and all the atrocities revolved round him during the War of Liberation. It is also proved beyond reasonable doubt that accused Ghulam Azam had complicity with the perpetrators in making planning, conspiracy and incitement which resulted massive atrocities in Bangladesh during the War of Liberation.

383. Mr. Imran Siddique the learned defence counsel forcefully submits that the Exhibit documents of prosecution show that the term miscreants, rebels, separatists,enemies, anti-state elements and intruders were used in 1971 to refer freedom fighters only who were neither protected group nor stable in character to become a group as required under Genocide Convention as well as under section 3(2)(c) of the Act of 1973 and as such the charge of planning and incitement to commit genocide does not hold good against the accused.

384. We have already addressed the submission in foregoing discussions. However, we reiterate the same issue that in the night following 25 March, 1971 the Pakistan army launched war with intent to destroy targeting Banglee nation as a whole or in part and subsequently the Pakistan army along with its collaborators attacked upon unarmed civilians targeting Hindu Community as a religious group with intent to destroy the said group. It is evident that Bangalee nation as well as Hindu Community as religious group both are protected groups as required under Genocide Convention and also under section 3(2)(c) of ICT Act of 1973. As such the defence’s submission as to alleged absence of protected group during the War of Liberation is not sustainable in law.

385. Accused Prof. Ghulam Azam as a defacto superior acted in such a manner which tends us to hold that his prime object was to annihilate the Bangalee nation in the name of protecting Pakistan. The accused was the head of East Pakistan Jamaat-e-Islami, but that stand did not give him licence to form Militia Bahinis with intent to attack upon unarmed civilians 238 which resulted offences of genocide and crimes against humanity through out the country in 1971.

386. On scrutiny of the evidence on record, we have found that the prosecution has successfully proved the status of accused Prof. Ghulam Azam that he had superior responsibility over his subordinates but he failed to prevent them from committing atrocities as contemplated in section 4(2) which substantially aided and contributed to the commission of crimes against humanity, genocide and other class crimes as specified in section 3(2) of the Act during the War of Liberation in 1971.We are convinced to hold that prosecution has proved all the broad charges (five charges) brought against the accused beyond reasonable doubt.