Why do people support the tribunal despite criticisms?

Why is it that so few liberals, progressives and human rights activists in Bangladesh are willing to accept the criticisms articulated by many independent and well respected observers about the International Crimes Tribunal? Why have neither of the country's two main independent human rights organisations, Ain-o-Salish Kendra or Odhikar, given any statement remarking on concerns about the tribunal?. With so many people clapping for joy at the  execution of Md Kamaruzzman - and just hours before the publication of what are very likely to be jubilant headlines in tomorrow's newspapers here in Bangladesh - I am pasting part of a short feature I wrote late last year for Al Jazeera looking at this issue.

(To see statements from human rights organizations and international bodies calling to a halt to the execution, see here)

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Bangladesh war trials: Justice or politics?Many contend the war crime trials hold leaders accountable for crimes during the 1971 war, others argue it is revenge.

….. Jamaat-e-Islami, now a key member of the opposition alliance against the Awami League government, has argued that the trials represent a political vendetta against the party.

However, polls conducted in 2013 showed that the legal process is supported by an overwhelming majority of the country with 86 percent of those polled stating they wanted trials to proceed. 

'Meting out justice' 

Some contend that the trials should be viewed as holding leaders answerable for crimes for which they had previously escaped accountability and not an act of retribution.
In a recent article, Mahfuz Anam, the editor of the country's leading English language newspaper The Daily Star, stated, "It is not revenge. It is not retribution. It is not settling of accounts. And politics, it is definitely not. It is meting out justice."
"It is holding political leaders accountable for their action especially if they commit crimes against humanity. It is fulfilling an inner urge for justice and fair play. In the final analysis it is establishing the supremacy of law and humanitarian values that we have learnt to hold dear in our hearts."
The perspective, however, sits in stark contrast with the views of international human rights organisations which have been uniformly critical of the process, though still supporting the need to hold trials.
The International Commission of Jurists has stated that the tribunal does "not adhere to international standards of a fair trial and due process" and that there are "serious procedure flaws at all stages".
And Human Rights Watch has also said that that the conviction of Golam Azam, the head of the Jamaat in 1971, was based on "flawed proceedings".
The International Centre for Transitional Justice also called for the current judicial proceedings to be "suspended" earlier this year pointing to issues of "fundamental unfairness".

Lack of criticism 

Although Anam's article refers to unwarranted "incidents" at the tribunal and the possibility of "some procedural flaws", the issues raised by the international human rights lobby continued to be ignored.
He is not alone in this lack of interest in fair trial criticisms.
Neither of the country's two main independent human rights organisations, Ain-o-Salish Kendra or Odhikar, have given any statement remarking on any concerns.
And the autonomous National Human Rights Commission, far from voicing any dissent, has been highly supportive of the trial process.
So, while some commentators have suggested that the trial process is dividing the country, the most notable chasm stands between supporters of the tribunal, which include the country's human rights community and other members of wider civil society, and international human rights organisations.
Criticisms of the trials have been largely ignored in Bangladesh, with many believing that the trials are fair, preferring to accept the tribunal's view that the law and process have ensured that the "fundamental and key elements of [a] fair trial" exist.
Iftekaruzzaman, the Executive Director of Transparency International points out that it is in the nature of these kinds of highly charged trials dealing with international crimes that there is disagreement about issues of due process - and so the opinions of international organisations should be put in that context.
"There is certainly questions about whether or not the international human rights organisations are being sufficiently objective or not," Iftekaruzzaman told Al Jazeera.
"For example in relation to the death penalty, people ask why is it that the only time these organisations make statements against the death penalty involves those convicted of crimes against humanity, and not on any other cases."
There are also those who argue that the international organisations are judging these particular trials from too high a standard.
"When the criminal justice process in Bangladesh is riddled with corruption, torture and politicisation, and there is a general lack of due process, people wonder why there should there be any reason for concern about these particular trials," Dr Shahnaz Huda, chairman of the law department at Dhaka University told Al Jazeera.
Syeed Ahmed, a blogger on the war crimes trials, agrees. "People don't think that the alleged war criminals are being treated any worse than common criminals. So, unless the whole legal system is upgraded, people are unwilling to give special treatment for the alleged war criminals."

Manufactured outcry 

There is also the view that the the fair trial criticisms are really just a cover for those who are really only interested in helping the accused escape punishment.
The sentiment has merged with scepticism about the integrity of the foreign human rights organisations themselves.
"Loud voices of human rights agencies regarding fairness of the war crimes trials has failed to create traction here because they have not made the same kind of arguments in relation to other trials in Bangladesh." Ahmed told Al Jazeera.
For some, the issue of fair trials is simply not significant, since in the view of many, these men are known to be guilty of crimes in 1971, and who have managed till now to use their political influence to escape justice, and the sooner they are punished the better.
"People in Bangladesh 'know' that these men are guilty, so they do not see any reason to go through this process to try to find out whether the men are guilty of not," Huda told Al Jazeera.
"Their guilt is so accepted by everyone, that there is no need for due process."
This view might help explain why the same polls that suggested four-fifths of the country supported the tribunals, also showed a majority of people, 63 percent, thought that the trials were "unfair" or "very unfair".
Ahmed also thinks that this apparently conflicting positions about the war crimes trials reflect people's recognition that there are no better options.
"The fact that the Awami League is the only party willing and able to conduct this war crimes trial [means that people are] settling for whatever this government is offering. Four decades of rehabilitation and amnesty of war criminals have made people impatient, rejecting questionable concerns about fair trials," he added.
While fair trial advocates argue that due process concerns should trump all these arguments, there are not many in Bangladesh who are willing to accept that their assessments should have any influence on the process itself.

Statements seeking stay on Kamaruzzaman execution

With Jamaat leader Kamaruzzman about to face the death penalty probably tonight, human rights organizations and other international bodies outside Bangladesh have called on the government to stay the execution - though no similar organizations inside the country have as far as I known done so.*

(See also: Why do people support the tribunal despite criticisms?)

Here are the main statements that have been published:

United Nations, Special Rapporteurs

"The UN human rights experts have on several occasions expressed alarm regarding serious violations of fair trial and due process guarantees in the judicial proceedings before the Tribunal that were reported to them"

United Nations, High Commissioner for Human Rights: Halt execution

"The trial was reportedly rife with irregularities and did not meet international fair trial standards."

Human Rights Watch: Suspend death sentence of sentence of war crimes accused

"At his trial, the court arbitrarily limited the ability of the defense to submit evidence, including witnesses and documents. The court denied the defense the opportunity to challenge the credibility of prosecution witnesses by rejecting witnesses’ earlier statements that were inconsistent with their trial testimony."

European Union: Reiterates its opposition to use of the death penalty

"The European Union reiterates its opposition to the use of capital punishment in all cases and under all circumstances. The EU has consistently called for its universal abolition. Capital punishment is not a deterrent against crime and makes miscarriages of justice irreversible. The European Union calls on Bangladeshi authorities to commute all death sentences and to introduce a moratorium on executions as a first step towards definitive abolition of capital punishment.

Amnesty International: President must stop imminent execution

"Bangladeshi civil society, Amnesty International and other international bodies have welcomed the government’s move to end the longstanding impunity in Bangladesh for serious human rights violations in 1971. However, most observers including Amnesty International have expressed concern over how the proceedings before the ICT violated international fair trial standards There were also irregularities in the proceedings, for instance, the court did not allow the defense to challenge the credibility of prosecution witnesses.".

UK Bar Human Rights Committee: Stay Execution pending independent review

"BHRC has raised serious concerns repeatedly about the fairness of trials before the International Crimes Tribunal (ICT) in Bangladesh, and in particular in respect of the trial of Muhammad Kamaruzzaman in a statement of 11 November 2014. There is evidence that the trial of Kamaruzzaman was flawed on a number of counts, including arbitrary limitation of witness evidence, limited ability to cross examine key witnesses and concerns relating to the impartiality of judges which resulted in an application to recuse two judges of bias being summarily dismissed. ….

"While the BHRC is opposed to the death penalty in all circumstances, it urges the Bangladeshi authorities now to take immediate steps to prevent an execution that arises out of a flawed trial. An independent review of this case and all other cases currently before the ICT must be conducted if victims are to gain genuine accountability for the atrocities committed in 1971."

Commonwealth Lawyers Association: Concerned over sentencing of Md Kamaruzzaman

"The CLA supports steps taken to seek justice and address impunity. Further, it supports the principle of the International Crimes Tribunal (ICT), and its stated aim of prosecuting those who are alleged to be responsible for atrocities committed during the 1971 War of Independence, however, the ICT in its present form does neither of these two things. The likely execution of Kamaruzzaman will be the second instance of state sponsored murder concerning proceedings before the ICT, the first being the execution of Abdul Quader Molla.

The ICT has not adhered to its obligations under domestic Bangladesh law, nor has it met its obligations under those international treaties and agreements to which Bangladesh is a state party, in its failure to ensure all those who appear before it are afforded a fair trial."

At all stages of the process, from court of first instance to appellate courts, the ICT has either failed to acknowledge the serious shortcomings of the procedures adopted, or, if it has recognised such shortcomings, it has failed to address them.

United States government: Best not to proceed

"We have seen progress, but still believe that further improvements to the ICT process could ensure these proceedings meet domestic and international obligations. Until these obligations can be consistently met, it is best not to proceed with executions given the irreversibility of a sentence of death."

* the initial version of this post stated that the lack of a US government statement was notable. However, late in the day, just a few hours before Kamaruzzman was executed, a statement was published and is included above

See: Some Background to the case

For the government, is this a good time for the execution of Kamaruzzaman?

Md Kamaruzzman, sentenced to death for 1971 war crimes

With the decision today by the Appellate Division to dismiss the review application made by Md Kamaruzzaman (against the decision of the same court which had earlier upheld the sentence of death), the government is now in a position to execute him.

There does remain the issue of clemency. The appellate division in its decision involving Abdul Quader Molla (involving his review application) accepted that a convicted war criminal does have a right to make a mercy petition, but goes onto state the existing time limits of 7 and 21 days set out in the jail code should not apply. It states that the processes of seeking and disposal of a mercy application, should be done as 'expeditiously as soon as possible'. The judgement states at p.26

He should be informed of his privileges to file a review or a mercy petition, as the case may be, as soon as the intimation about the confirmation of sentence is received by the jail authority and to fix a short date for execution until the existing rules are amended. The petition of review and mercy should be disposed of expeditiously as soon as possible. If the prisoner does not choose to avail of the privileges, the sentence should be executed on the date so fixed without delay, which have become ineffective under prevailing changed circumstances.

Neither Kamaruzzaman, nor his defense counsel, have stated whether he will seek clemency - and no doubt the defense will try and stretch this time out of not saying anything one way or the other as long as possible - but I cannot see Kamaruzzman seeking clemency. This is first because seeking clemency would imply an admission of guilt on his part, and secondly, there is no way of knowing that the clemency would be granted. Kamaruzzman, and the Jamaat-e-Islami, would not want to be in a situation of first admitting guilt and then not being given clemency!

For the government, is this a good timing for an execution? Intriguingly it is likely to happen just before  the mayor elections in Dhaka and Chittagong - just as the Molla execution  took place in December 2013, just weeks before the January 2014 national elections.

Arguably, there at least three reasons why government decision makers might think this was a good time to execute Mollah.

1. The government has categorically defeated the BNP which had sought to force the government to hold new elections. Khaleda Zia has retreated back home with her metaphorical tail between her legs, having gained almost nothing for her party, and lost an enormous amount (imprisonment of thousands of her activists, deaths and injuries of dozens in police shootings, and the remaining activists in hiding etc) - not even mentioning of course the loss of other lives and costs to the country. The Jammat-e-Islami is in a similar position - particularly as their fortunes are tied closely to that of the BNP. The opposition has therefore never been organizationally or morally weaker (though ironically electorally that may not be the case). With the opposition in such a situation, this could be seen by the government as a perfect time to execute Kamarauzzaman - the icing on the cake.

2. The execution of Kamaruzzaman helps to define the Awami League as a 'pro-liberation party', and helps to differentiate the party clearly from the BNP. At a time of elections this is helpful to the Awami League, as it will assist the party in getting the support of people in centre ground who are perhaps skeptical of the governing party, but in favor of justice for 1971. It will of course gain the enthusiasm of some of the party's base.

3. The international community has rarely been so weak in its interactions with the government on human rights issues - and an execution now will gain, I would judge, far less attention or concern than the execution of Molla in December 2013.

Transcript of what US ambassador Rapp said

Two days ago the US Ambassador for Global Justice gave a conference call to a journalist from Prothom Alo newspaper and one from New Age (myself) who were asked to come to the American Centre

It is not clear why so few journalists were called, nor why the statement was not put on the US state department website.

Here is the article in New Age that was based on the call

Rapp however spoke for about 30 minutes, and the detail of what he said is interesting - whether one agrees with it or not.

Below is a transcript of the main part of the conference call. (There is some more, but the line was rather poor, and it will take time to transcribe, and this may not be possible at all.) For those interested to see what Rapp said last time he was in Dhaka in August 2013, see the transcript of that press conference here

On Monday, Rapp started by reading out the following statement over the phone:

‘The United States supports bringing to justice those who committed atrocities in the 1971 Bangladesh war of independence. In doing so, the ICT trials must be free, fair and transparent, and in accordance with international obligations that Bangladesh has agreed to uphold though its ratification of international agreements including the International Covenant on Civil and Political Rights.’  

‘Countries that impose a death penalty must do so with great care, in accordance with a very high standard of due process and respect for fair trial guarantees. It is inevitable that scrutiny will be heightened when a death penalty is pronounced. Therefore judges, as well as authorities having powers of commutation, should exercise great caution before imposing and implementing a sentence of death.’  

As I said during my fifth visit to Bangladesh in August 2014, we have seen some progress but still believed that further improvements to the International Crimes Tribunal process could ensure these proceedings meet domestic and international obligations. Until it is shown that these obligations have been met it is best not to proceed with executions given the irreversibility of a death sentence.’ 

He then allowed some questions to be asked

Rolling Blog on Kamaruzzman execution

This is s rolling blog on the Kamaruzzman execution, which the government is now seeking to go ahead in a short number of days

You need to keep refreshing the page to see updates

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This rolling blog is now finished. And further developments in relation to the execution of Kamaruzzman will be discussed on new pages

Monday, 10 November 2014

11.55 pm: Govt backs down on execution without full judgement
I missed, perhaps the most important news of the day. New Age published a report in the paper this morning which stated that the Attorney General gave a press conference on Sunday in which he said that the government was likely now to wait until the publication of the Appellate Division's full judgement in Kamaruzzman's case before executing him. A similar story was published in the Daily Star.

In the press conference, it appears he first acknowledged that if the government was going to follow the Jail Code, the prison could not take any action without a 'warrant of execution' and this would first require a full appellate court judgement

Secondly, that the government would have to wait for the appellate division's judgement on Molla's rejected application to review in order to find out whether Kamaruzzman could seek a review application of his appeal judgment.

So where does that leave us now.

First, this is a big U-turn by the government, and by the Attorney General. It was only a few days ago that it seemed that the execution was going to be any day. And the government/AG rhetoric left little doubt about their intentions.

Secondly, I would speculate that the main reason for this change of events, was the differences of opinion within the appellate division (nothing unusual about that) concerning the right approach about issuing a short order or not. The government, I imagine had hoped that the court would be willing to issue a short order, but at least one judge was perhaps not in favour of that approach.

Thirdly, whatever was the reason behind the government decision, it is a good one. To have executed Molla before he had a chance to even see the reasons why the court had dismissed the appeal would have been simply wrong, yet alone before giving him a chance to review the decision (when there remains a chance that he has a right to seek a review). It also will have the effect of diluting the international criticism about the execution.

Fourthly, there is the issue of when the appellate division judgement will be issued. In the Molla case the short order was issued in mid September, and the full judgement at the end of November - a period of about 2.5 months. In this case, the judgement does not need to be anywhere near as long since many of the legal issues will have been dealt with in the Molla judgement. So whilst it could take as long as 2.5 months, it it is more likely to take less. A mid-December execution, around victory day is still possible - though it will depend on what the appellate division rules in its decision on Molla's review application.

5.10 pm: BREAKING NEWS: US government calls for halt to Kamaruzzaman execution
In a move that I would gauge will be far from popular amongst many/most in Bangladesh, the United States has called for a halt to the execution of the Jamaat-e-Islami leader Kamaruzzaman. It did so through a statement given by its Ambassador-at-large for Global Criminal Justice, Stephen Rapp a couple of hours ago.

The key part of Rapp's statement, given in a conference call to myself (as a New Age reporter) and a reporter from the biggest newspaper in Bangladesh, Prothom Alo, is as follows:

'As I said during my fifth visit to Bangladesh in August 2013, we have seen some progress, but still believe that further improvements to the International Crimes Tribunal process could ensure these proceedings meet domestic and international obligations. Until these obligations can be shown to have been met, it is best not to proceed with executions given the irreversibility of a death sentence.'

I have written a short article for New Age which includes further comments given by Ambassador Rapp, and will link to it when it comes up on the website. I will also provide further details about what he said later.

Sunday, 9 November 2014

1.30 pm: HRW calls for Halt of execution
Calling the international Crimes Tribunals, 'replete with fair trial concerns', Human rights watch has called for the execution of Kamaruzzaman to be halted. The full text is here.

It first calls on government to allow for a review of the full judgement:

"Kamaruzzaman and his counsel have yet to receive the full text of the final verdict, which is necessary for him to be able to lodge a petition for review of the decision within thirty days, a standard procedure in all death penalty cases. Government officials have indicated that the execution is possible before the full verdict is issued which goes against standard policy in death penalty cases."

It then refers to its opposition to the death penalty in all circumstances, but states that such a sentence

“is particularly problematic when proceedings do not meet fair trial standards and where the right to appeal against a death sentence by an independent court is not allowed.”

In relation to fair trial concerns, it states:

Human Rights Watch noted that trials before the ICT, including that of Kamaruzzaman, have been replete with fair trial concerns. In Kamaruzzaman’s case, defense evidence, including witnesses and documents, were arbitrarily limited. Inconsistent prior and subsequent statements of critical witnesses were rejected by the court, denying the defense a chance to challenge the credibility of prosecution witnesses. An application by the defence to recuse two judges for prior bias was summarily rejected.

This follows a disturbing precedent from other cases. In December 2013, Abdul Qader Mollah was hanged following hastily enacted retrospective legislation which is prohibited by international law. Another accused, Delwar Hossain Sayedee, was convicted in spite of credible allegations of the abduction by state forces of a key defence witness with the ICT refusing to order an independent investigation into the charge. Many of the trials have been marred by the evidence of intercepted communications between the prosecution and the judges which reveal prohibited contact. The ICT’s response on several occasions to those who raise objections about the trials has been to file contempt charges against them in an apparent attempt to silence criticism rather than answer substantively or indeed, to rectify any errors.

Delay in appellate division judgment creates uncertainty over right of review

This article was published on 4 November in New Age. See:
- this page for what happens next for Kamaruzzman and
- this page for the offence for which he was sentenced to death.

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Delay in AD judgement creates uncertainty over review legality

David Bergman

The continuing delay in the publication of the appellate court’s December 2013 judgment rejecting Abdul Quader Molla’s last minute ‘appeal’ to overturn his death sentence has created uncertainty about whether those convicted by the International Crimes Tribunal can seek a review of an appellate court decision.
This has become significant in light of Monday’s decision by the court to uphold one of the death sentences imposed by the Tribunal against Jamaat leader Kamaruzzaman, and the intention of the defence lawyers to review this decision and September’s appellate court decision to uphold convictions against Delwar Hossain Sayedee.

Kamaruzzaman - the Sohagpur mass killing

This is an extract from the International Crimes Tribunal judgment dealing with charge no 3 for which it had imposed a death penalty, a sentence that was upheld today by the appellate division.

To read about what happens next to Kamaruzzaman, click here

To access the full judgement, click here

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Adjudication of Charge No. 3 [Sohagpur mass killing]

291. Summary Charge: During the period of War of Liberation, on 25.7.1971 in the early morning, accused Muhammad Kamaruzzaman being chief organiser of Al-Badar Bahini as well as leader of Islami Chatra Sangha or member of group of individuals advised your accomplices belonging to Al- Badar and Razaker Bahini who accompanied the Pak army in contemplating and taking steps towards commission of large scale massacre, to raid the village Sohagpur and accordingly they launched planned attack and murdered about 120 unarmed civilians including the 44 victims as named in the paragraph 8.7 of the Formal Charge and committed rape upon women of the said village and thereby Muhammad Kamaruzzaman has been charged for participating, substantially facilitating and contributing to the commission of offences of ‘murder as crime against humanity’ or in the alternative for ‘complicity to commit such crime’ as specified in section 3(2)(a)(h) of the Act,1973 which are punishable under section 20(2) read with section 3(1) of the Act.

Witnesses

292. Prosecution adduced and examined as many as 05 witnesses in order to substantiate this charge. Of them P.W.11, P.W.12 and P.W.13 are the victims of sex violence who have been examined in camera as prayed by the prosecution. P.W.2 Monwar Hossain @Mohan Munshi was a member of Al- Badar and at the relevant time he had been working as a guard of Al-Badar camp set up at Suren Saha’s house, Sherpur and he had opportunity to see and know the activities of accused Muhammad Kamaruzzaman who was the leader of the camp, as claimed. P.W.10 Md. Jalal Uddin [one of victims of the massacre] is the son of martyr Safir Uddin of crime village Sohagpur. He narrated the horrendous event of massacre.

Kamruzzaman death sentence upheld, what happens next

Md Kamaruzzaman, death penalty upheld

With the appellate division today upholding, by a majority decision, the death sentence on the Jamaat leader, Kamaruzzaman for charge no 3 (the death penalty for charge 4 was commuted to life imprisonment) what happens now?

First of all, court precedent suggests that nothing will happen on the basis of this 'short order'. The carrying out of the death sentence will have to wait until until the full written judgement is given, and this can be quite some time. In the case of Molla, the short order was given in September 2013, and the written judgement in late November, a few months later.

Secondly, the defence will seek a review of the decision (Tajul Mohammed, the defence lawyer has already said that). Since there has been no written decision on the application by the defence lawyers in relation to its application seeking a review of the Abdul Quader Molla appellate division decision, it remains unclear whether the court accepts the right of the defence lawyers to seek such a review.

However, even if the court does accept a review application, this may add an extra few days to the process, but is very very unlikely to stall it (see below)

Thirdly, since the position of the government (and it appears the court) is that the jail code does not apply to those convicted by the ICT, once the full written judgement is given, the process towards the carrying out of a death sentence, if that is what the government wants to happen, can be quite swift.

On the issue of the review of an appellate division decision, I am setting out below what I have earlier written in the context of Sayedee

Article 105 of the constitution sets out the power of the appellate division to review its judgment. This Article states:

The Appellate Division shall have power, subject to the provisions of any Act of Parliament and of any rules made by that division to review any judgment pronounced or order made by it. 

Order 26 of the Appellate Division rules sets out the procedure for this.

1. Subject to the law and the practice of the Court, the Court may, either of its own motion or on the application of a party to a proceeding, review its judgment or order in a Civil proceeding on grounds similar to those mentioned in Order XL VII, rule 1 of the 'Code of Civil Procedure and in a Criminal proceeding on the ground of an error apparent on the face of the record. (emphasis added)
2. Applications for review shall be filed in the Registry within thirty days after pronouncement of the judgment, or, as the case may be, the making of the order, which is sought to be reviewed.The applicant shall, after filing the application {or review, forthwith give notice thereof to the other party and endorse a copy of such notice to the Registry.
3. Every application for review shall be accompanied by a certified copy of the judgment or order complained of and when the application proceeds on the ground of a discovery of fresh evidence certified copies of the documents, if any relied upon, shall be annexed to the application, together with an affidavit setting forth the circumstances under which such discovery has been made.
4. No such application shall be entertained unless it is signed by a Senior Advocate who, in this behalf: shall not be governed by the restrictions contained in clause 2 of the First Schedule to these rules.
5. The Senior Advocate signing the application shall specify in brief the points upon which the prayer for review is based, and shall add a certificate to the effect, that consistently with the law and practice of the Court, a review would be justifiable in the case. The certificate shall be in the form of a reasoned opinion.
6. Except with the special leave of the Court, no application for review shall be drawn by any Advocate other than the Advocate who appeared at the hearing of the case in which the judgment or order, sought to be reviewed, was made. Such Advocate shall, unless his presence has been dispensed with by the Court, be present at the hearing of the application for review.
7. As far as practicable the application for review shall be posted before the aame Bench that delivered the judgment or order sought to be reviewed. (emphasis added)
8.. After the final disposal of the first application for review no subsequent application for review shall lie to the Court and consequently shall not be entertained by the Registry.
9. No application for review shall be entertained unless party seeking review furnishes a cash security of [Tk.lO,OOO], which shall be liable to be forfeited [if the review petition] is dismissed. (emphasis added) 

The following should be noted about the 'review':
- there are very limited grounds that can allow a review of an appellate division decision to be successful: there has to be an 'error apparent on the face of the record' which in case law is drawn very narrowly. 

- it is not an appeal. It is heard by the same bench of judges that made the order which is in question. So the applicant is asking the same set of judges to accept that they made a serious error! As one cam imagine, successful appellate division reviews are therefore very uncommon. 

- The International Crimes Tribunal gave itself the power to review its decisions and although it has dealt with dozens and dozens of applications for review, I am not aware of a single decision that was fully overturned. 

In the Molla case, the defence argued that the accused had a right to review under article 105, but the attorney general argued that it did not - claiming that the limits of the an accused's right to appeal are set out in the International Crimes (Tribunal) Act 1973, due to Article 47(3) of the constitution which precludes a person accused of international crimes from seeking any constitutional remedy. In the Molla case, the appellate division did not clarify whether there was a right to review or not - dismissing the review application without passing a reasoned order.

Kamaruzzaman trial index

Kamaruzzman trial index

This page list the links to the indictment against Kamaruzzaman (in Tribunal 2) and the hearings (in Tribunal 1) that that took place that led up to the indictment.

The evidence giving during the trial and the closing arguments will be put up here shortly

The verdict is due to be be given on Thursday 9 May 

4 Jun 2012      Order of indictment (scroll to the end to see the charges)

1 Apr 2012     Defence argument against charge framing/indictment

19 Mar 2012   Prosecution argument for charge-framing, day 2

18 Mar 2012   Prosecution argument for charge-framing, day 1 (am)

18 Mar 2012   Prosecution argument for charge-framing, day 2 (pm)


Index on key postings on rest of blog


New on the blog
- Defence applications seeking recusal of Justice Manik and Justice Sinha

Appellate Division
- start of appeals relating to the conviction of Abdul Quader Mollah

Trial of Delwar Hossain Sayedee
- index to pre-trial hearings, trial testimony and analysis
- index to closing arguments, applications for retrial, judgement

Trial of Abdul Quader Mollah
- index to pre-trial and trial proceedings, closing arguments and judgement

Trial of Abdul Kalam Azad
- Index to trial testimony, closing arguments and judgement
- Azad judgment analysis, 1 and 2

Kamruzaman indictment review order

This will be uploaded shortly. Please e-mail if you want to be alerted!

Kamruzaman indictment review application

This will be uploaded shortly. Please e-mail if you want to be alerted!

4 Jun 2012: Kamaruzzaman order of indictment

This is the order of indictment against Muhammad Kamaruzzaman handed down by the International Crimes Tribunal.

To see the seven offences for which he was charged, scroll down to the end of the page.

Decision on Charge Framing Matter 

Accused Muhammad Kamaruzzaman has been produced before this Tribunal today by the prison authority. Today is fixed for passing decision on charge framing matter and as such the record is taken up for order. Before passing the order, we would like to provide a brief milieu and context of the case, its history and the arguments put forward by both prosecution and defence before this Tribunal 1. 

1. Introduction and Formation of the Tribunal 
This International Crimes Tribunal (hereinafter referred to as the "Tribunal") was established under the International Crimes (Tribunals) Act enacted in 1973 (hereinafter referred to as the "Act") by Bangladesh Parliament to provide for the detention, prosecution and punishment of persons responsible for genocide, crimes against humanity, war crimes, and crimes committed in the territory of Bangladesh, in violation of customary international law, particularly between the period of 25th March to 16th December 1971 . However, no Tribunal was set up and as such no one could be brought to justice under the Act until the government established ' Tribunal' (Tribunal-1) on 25th of March 2010. It is to be noted that for ensuring expeditious trial, the government has set up this Tribunal (Tribunal-2) under section 6(1) of the Act on 22.3 2012.  

2. Historical Context: 
In August, 1947, the partition of British India based on two-nation theory, gave birth to two new states, one a secular state named India and the other the Islamic Republic of Pakistan. The western zone was eventually named West Pakistan and the eastern zone was named East Pakistan, which is now Bangladesh.  

In 1952 the Pakistani authorities attempted to impose Urdu as the only State language of Pakistan ignoring Bangla, the language of the majority population of Pakistan. The people of the then East Pakistan started movement to get Bangla recognized as a state language thus marking 'the beginning of language movement that eventually turned to the movement for greater autonomy and self-determination and eventually independence.  

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

In the War of Liberation that ensued, all people of East Pakistan wholeheartedly supported and participated in the call to free Bangladesh but a small number of Bangalees, Biharis, other pro-Pakistanis, as well as members of a number of different religion-based political parties joined and/or collaborated with the Pakistan military to actively oppose the creation of independent Bangladesh and most of them committed and facilitated the commission of atrocities in the territory of Bangladesh. As a result, 3 million (thirty lac) people were killed, more than 2,00,000 (two lac) women raped, about 10 million (one crore) people deported to India as refugees and million others were internally displaced. It also experienced unprecedented destruction of properties all over Bangladesh.  

The Pakistan government and the military setup number of auxiliary forces such as the Razakars, the AI-Badar, the AI·Shams, the Peace Committee etc, essentially to collaborate with the military in identifying and eliminating all those who were perceived to be sympathized with the liberation of Bangladesh, individuals belonging to minority religious groups especially the Hindus, political groups belonging to Awami League and other pro-independence political parties, Bangalee intellectuals and civilian population of Bangladesh. Undeniably the road to freedom for the people of Bangladesh was arduous and torturous, smeared with blood, toil and sacrifices. In the contemporary world history, perhaps no nation paid as dearly as the Bangalees did for their emancipation.  

3. Brief account of the Accused 
Accused Muhammad Kamaruzzaman son of late Insan Ali Sarker of village- 1967 while he was a student of class X of Sherpur GKM Institution he started student politics as a supporter of Islami Chatra Sangha. He was the secretary, Jamalpur Ashek Mahmud Degree College hall unit, while he was student of degree class. He contested in college student sangsad against the post of Assistant Cultural secretary but could not succeed. At the end of 1970 he was assigned with the charge of president, Islami Chatra Sangha of greater Mymensingh. During this period, Matiur Rahman Nizami was the President of Nikhil Pakistan, Islami Chatra Sangha. Accused Kamaruzzaman was holding the post of office secretary of Islami Chatra Sangha of the then East-Pakistan while Ali Ahsan Muzahid was holding the responsibility of general secretary of the organization. Accused Kamaruzzaman, in 1971 , as the president of Islami Chatra Sangha, greater Mymensingh played the role of a key organizer in formation of Al-Badar Bahini with the selected students of Ashek Mahmud College belonging to lslami Chatra Sangha. Within a month, under the leadership of Kamaruzzaman, all the students belonging to Islami Chatra Sangha of greater Mymensingh were absorbed to Al-Badar Bahini and they on receiving summary training, started committing atrocities targeting the Hindu community and unarmed Bangalee civilians in the region of Kishoreganj , Netrokona, Sherpur, Jamalpur and Mymensingh. He allegedly being in close association with the Pakistani army, actively aided, abetted, facilitated and substantially contributed in committing dreadful atrocities during the War of Liberation in 1971 in the territory of Bangladesh.  

4. Procedural History
At pre-trial stage, an application under Rule 9(1) of the Rules of Procedure was initiated by the Chief Prosecutor seeking arrest of accused Muhammad Kamaruzzaman contending that his detention or arrest was indispensable for the purpose of effective and proper investigation. In course of hearing the matter, it was learnt that the accused was already in custody in connection with some other case. As a result, pursuant to the production warrant (PW) issued by the Tribunal (Tribunal-I) the accused was produced before the Tribunal (Tribunal-I) by the prison authority and then he was shown arrested and detained as an accused before the Tribunal. Accordingly, since 02.10.2010 the accused Muhammad Kamaruzzaman has been in custody.  

The Tribunal (Tribunal-I), since his detention, has entertained a number of applications seeking bail and the same were disposed of in accordance with law and on hearing both sides. The Tribunal also allowed the learned defence counsels to have privileged communication with the accused in custody. To prohibit coercion and torture of any kind, the Tribunal also ordered the presence of engaged counsel and a doctor at a room. adjacent to the room of the 'safe home' where the Investigation Agency was allowed to interrogate the accused.  

Finally, the Chief Prosecutor submitted the Formal Charge under section 9(1) of the Act on 05.12.2011. But considering it the Tribunal directed the prosecution, in exercise of its inherent power, to submit it afresh in an arranged manner and thus the same was duly submitted on 12.01.2012 alleging that the accused as the chief organizer of the AI-Badar Bahini as well as a leading official of the Islami Chatra Sangha or member of a group of individuals had committed the offence of crimes against humanity, conspiracy to commit such crimes in different places of greater Mymensingh and also had conscious complicity to commit such crimes as specified in section 3(2) of the Act, during the period of War of Liberation in 1971. The Tribunal, considering the Formal Charge and documents submitted therewith, having found prima facie case, took cognizance of offences against the accused Muhammad Kamamzzaman on 31.1.2012. Prosecution was, as next stage of proceedings, then directed to furnish copies of the Formal Charge and documents submitted there with which it intends to rely upon for supplying the same to the accused for preparation of defence.  

The Tribunal- I, on application filed by the Chief Prosecutor ordered for transmission of the case record to this tribunal-2 under section l1A (I) of the Act, for expeditious trial and disposal of the case. This Tribunal, thereafter, received the case record on 29.04.2012. Earlier, the case was at stage of hearing the charge framing matter. Thus, this Tribunal had to hear the matter afresh as required under section 11A (2) of the Act. The hearing took place on 08 May, 13 May, 15 May, 16 May, 17 May and 20 May 2012. Before this Tribunal, in course of hearing the charge matter, the learned prosecutor Mr. Saiful Islam placed his submissions insisting on framing charges against the accused, in the light of the Formal Charge together with the statement of witnesses and documents submitted therewith. While Mr. Abdur Razzak, the learned senior counsel appearing for the accused, refuting prosecution's submission, has extended his meticulous submission both on factual and legal aspects and finally stressed to allow the prayer to discharge the accused. Submissions advanced by both sides, on charge framing matter, may be summarized together with the views of the Tribunal on concerns raised, as below:  

5. Submission advanced by the Prosecutor 
The learned Prosecutor, before drawing our attention to the facts narrated in the Formal Charge constituting the offences allegedly committed by the accused during 1971 War of Liberation, made a portrayal of the context that involved organizational plan and policy in execution of which the local pro-Pakistani fundamentalist Islamic political groups, auxiliary forces took part in committing the offences in the territory of Pakistani occupation force in committing horrendous atrocities. It is thus submitted that commission of offence of crimes against humanity and genocide in 1971 War of Liberation of Bangladesh is an undeniable fact of common knowledge that deserves judicial notice.  

It was further submitted that accused Muhammad Kamaruzzaman, as the chief organizer of AI-Badar Bahini and also as a member of group of individuals, conspired and aided the commission of numerous atrocities and had complicity to the commission thereof as well that the accused was also individually responsible for the attacks directed against unarmed civilian population constituting the offence of crimes against humanity and had direct and substantial complicity in committing killing of members of group with intent to destroy it, either whole or in part; that the accused had material ability and effective control on members of Al-Badar Bahini. The atrocious and unlawful acts depicted from statement of witnesses and documents fall within the purview of extermination, deportation, torture, rape, murder as crimes against humanity, genocide and other inhuman acts specified in section 3(2) of the Act, 1973. It was also submitted that the statement of witnesses, documents and materials collected during investigation amply establish the orchestration and commission of offences and complicity of the accused in the commission of crimes narrated in the Formal Charge. Arguing it further, the learned prosecutor finally insisted on framing of charges on collective consideration of the Formal Charge, statement of witnesses and documents which manifestly indicate that there are sufficient grounds of presuming that the accused was criminally culpable for the commission of offences as' mentioned in section 3(2) of the Act. 6.  

6. Submission advanced by the defence side 
The learned counsel for the defence by filing an application seeking discharge of the accused submitted that the allegations narrated in the Formal Charge do not disclose or state specificity of general particulars of facts and the required elements to constitute the offences of conspiracy, extermination, deportation, torture as crimes against humanity. The allegation of genocide is devoid of genocidal intent. Identification of group requirement does not appear to have been stated in the allegation of genocide. The activities of making statement and speech by the accused cannot be branded readily as 'hate speech' or the act of ' incitement' as the prosecution failed to show any causal relationship between such statement or speech and commission of any particular offence. The Formal Charge that stands on vague allegations even does not disclose the mode of participation of the accused with any of the alleged unlawful acts.  

The learned counsel further submitted that the ICC Statute recognizes the need to define crimes with clarity, precision and specificity that many jurisdictions require for criminal prosecution. By referring international references the learned counsel continued to argue that the ' attack' must be 'widespread' or 'systematic' in relation to the required elements to constitute the offence of crimes against humanity. But the Formal Charge lacks of this requirement. The learned counsel further argued that the Formal Charge neither contains particulars of facts nor the particulars of crimes as is required under section 16(1) of the Act and this requirement is compatible with the ICC Statute (Rome Statute) and the ICCPR for ensuring due notice of the charge enabling the accused to understand and defend him properly.  

On legal aspects, the learned Senior Counsel appearing for the accused further submitted that after enacting the International Crimes (Tribunals) Act 1973 there had been a ' tripartite agreement' executed in 1974 on the strength of which 195 Pakistani war criminals (member of armed forces) were shown clemency despite the fact that they were the principal perpetrators of atrocities committed in 1971 in the territory of Bangladesh and as such without bringing those principal offenders to justice the present accused cannot be prosecuted, merely on allegation of aiding and abetting the principal offenders. The Collaborators Order 1972 was meant to prosecute and try the local persons who allegedly collaborated and aided the Pakistani Army in committing serious crimes in 1971. Thus, the accused could have been prosecuted under the Collaborators Order 1972 if he actually collaborated and aided the Pak army, the principal offenders, in committing atrocities. There is nothing to show that the accused was listed in any manner as a perpetrator of atrocities committed in 1971, before constituting the Tribunal in 2010.  

It is thus validly presumed that the 1973 Act was enacted only to prosecute those 195 Pakistani armed forces members and not the second line local perpetrators.
It was further argued that amendment brought in the Act by inserting the words 'individual' or 'group of individuals' qualifying even a person who did not belong to any 'auxiliary force' does not have any retrospective effect and as such the prosecution against the accused cannot go on even if he is qualified as an ' individual' as embodied in section 3(1) of the Act and as such the amendment does have prospective effect. Prosecution is politically motivated. Delay of long 40 years in bringing prosecution against the accused remains unexplained.  

7. Reply of the Prosecutor
In reply to the factual aspects agitated by the defence, the learned Prosecutor Mr. Saiful Islam submitted that the statement of witnesses and documents submitted sufficiently speak of the fact that the accused Muhammad Kamamzzarrian was the chief organiser of AI-Badar Bahini and he played vital role in organising the Bahini in the region of greater Mymensingh. As such he had substantial and effective control on its members who desperately and actively participated in actual commission of crimes but the accused failed to prevent them from committing the offence and accordingly he is criminally responsible under section 4(2). He further submitted that 'abetting' or 'aiding' being distinct offence under the Act can lawfully be prosecuted. In reply to argument on amendment through which the words' individual' or 'group of individuals' have been inserted in section 3(1) of the Act the learned prosecutor mainly submitted that this Tribunal does not have jurisdiction to resolve the issue as it involves crucial constitutional interpretation and next, the intent of the Act and section 3(1) does not allow to infer that such amendment carries the 'prospective effect'. As regards the tripartite agreement providing immunity to 195 Pakistani war criminals, the learned prosecutor argued that the agreement was a mere 'executive act' which does not extinguish or derogate the jus cogens norms and the state obligation to prosecute the local perpetrators of atrocities and system crimes committed in 1971.  

The learned Prosecutor finally went on to argue that the Act does not prescribe provision of submitting any 'proposed charge' . The object of submitting the Formal Charge is to assist the Tribunal and according to Rule 37 on perusal of the Formal Charge and statement of the witnesses and the documents submitted therewith, if the Tribunal finds that there are sufficient grounds to presume that the accused had committed offences, then only the charges will be framed otherwise the accused shall be discharged. Therefore, it is not correct to say that the Tribunal is to peruse the Formal Charge only for resolving the matter of framing charges.  

8. Discussion and Decision 
Before we arrive at a decision on the matter we consider it expedient to resolve some of the pertinent legal issues upon which the learned counsel for the defence drew our notice. Succinctly, the defence raised the issue of inadequacy of the definition of crimes, the absence of elements of crimes like in ICC's Statute, the thresholds of the crimes against humanity, intent of enacting the Act of 1973, the tripartite agreement of 1974, legality of prosecuting the accused questioning the amendment of section 3(1) of the Act brought in 2009.  

(i) Amendment of section 3(1) of the Act in 2009  

It is submitted by the learned counsel appearing on behalf of the accused that since the subsequent amendment brought in 2009 of the Act of 1973 by inserting the words ' individual ;' or 'group of individuals' in section 3(1) carries 'prospective effect' , in reality, the present accused cannot be prosecuted in the capacity of an 'individual' for the offences underlying in the Act which is admittedly 'retrospective'. Since such amendment has not been expressly given retrospective effect interpretation stands that the amendment is prospective. Prosecution could not show that the accused belonged to Al Badar Bahini or an 'auxiliary force ' and as such on this score too he cannot be prosecuted under the Act of 1973. '

At the out set, it is to be noted that it is rather admitted that even under retrospective legislation (Act enacted in 1973) initiation to prosecute crimes against humanity, genocide and system crimes committed in violation of customary international law is quite permitted. It is to be noted that the ICTY, ICTR SCSL the judicial bodies backed by the UN have been constituted under their respective retrospective Statutes. Only the ICC is founded on prospective Statute.  

We are to perceive the intent of enacting the main Statute together with fortitude of section 3(1). At the same time we cannot deviate from extending attention to the protection provided by the Article 47(3) of the Constitution to the Act of 1973 which was enacted to prosecute, try and punish the perpetrators of atrocities committed in 1971 War of Liberation. The legislative modification that has been adopted by bringing amendment in 2009 has merely extended jurisdiction of the Tribunal for bringing the perpetrator to book if he is found involved with the commission of the criminal acts even in the capacity of an 'individual' or member of 'group of individuals'. It is thus validly understood that the rationale behind this amendment is to avoid letting those who committed the most heinous atrocities go unpunished. This is the intent of bringing such amendment.  

It may be further mentioned here that the words 'individual' or 'group of individuals' have been incorporated both in section 3 of the Act of 1973 and in Article 47(3) of the Constitution by way of amendments in 2009 and 2011 respectively. The right to move the Supreme Court for calling any law relating to internationally recognised crimes in question by the persons charged with crimes against humanity and genocide, has been taken away by the provision of Article 47 A(2) of the Constitution. Since the accused has been prosecuted for offences recognised as international crimes as mentioned in the Act of 1973, he does not have right to call in question any provision of the International Crimes (Tribunals) Act 1973 or any of amended provisions thereto. Thus, we hold that the application of prospectiveness or retrospectivity as to amendment to ~ section 3 of the Act of 1973 raised by the accused is quite consideration of his legal status and accordingly the defence objection is not sustainable in law, particularly in the light of Article 47(3) and Article 47A of the Constitution.  

(ii) Tripartite Agreement and immunity to 195 Pakistani war criminals 
It is not acceptable to say that no individual or member of auxiliary force as stated in section 3 of the Act of 1973 can be brought to justice under the Act for the offence(s) enumerated therein for the reason that 195 Pakistani war criminals belonging to Pak armed force were allowed to evade justice on the strength of 'tripartite agreement' of 1974. Such agreement was an ' executive act' and it cannot create any clog to prosecute member of 'auxiliary force ' or an 'individual' or member of 'group of individuals' as the agreement showing forgiveness or immunity to the persons committing offences in breach of customary international law was derogatory to the existing law i.e the Act of 1973 enacted to prosecute those offences.  

It is settled that the jus cogens principle refers to peremptory principles or norms from which no derogation is permitted, and which may therefore operate a treaty or an agreement to the extent of inconsistency with any such principles or norms. We are thus inclined to pen our conclusive view that the obligation imposed on the state by the UDHR and the Act of 1973 is indispensable and inescapable and as such the tripartite agreement which is an 'executive act' cannot liberate the state from the responsibility to bring the perpetrators of atrocities and system crimes into the process of justice.  

As state party of UDHR and Geneva Convention Bangladesh cannot evade obligation to ensure and provide justice to victims of those offences and their relatives who still suffer the pains sustained by the victims and as such an 'executive act' (tripartite agreement) can no way derogate this internationally recognized obligation. Thus, any agreement or treaty if seems to be conflicting and derogatory to jus cogen (compelling laws) norms does not create any hurdle to internationally recognized state obligation. Next, the Act of 1973 is meant to prosecute and punish not only the armed forces but also the perpetrators who belonged to 'auxiliary forces' , or who committed the offence as an ' individual ' or member of ' group of individuals' and nowhere the Act says that without prosecuting the armed forces (Pakistani) the person or persons having any other capacity specified in section 3(1) of the Act cannot be prosecuted. Rather, it is manifested from section 3(1) of the Act of 1973 that even any person (individual or member of group of individuals), if he is prima facie found individually criminally responsible for the offence(s), can be brought to justice under the Act of 1973. Therefore, the argument that since the main responsible persons (Pakistan Army) have escaped the trial, on the strength of the tripartite agreement providing immunity to them, the next line collaborators cannot be tried is far-off to any canons of criminal jurisprudence. Therefore, we are of the view that the ' tripartite agreement' is not at all a barrier to prosecute civilian perpetrator under the Act of 1973.  

(iii) Prosecuting 'abettor' and 'aider' 
We are not with the emphatic argument advanced by Mr. Abdur Razzak, the learned senior counsel appearing for the accused, on permissibility of prosecuting a person only as ' abettor' or 'aider' without bringing the principal offender to book.  

The Act of 1973 has enumerated abetting and aiding as distinct offence and punishable there under. From the jurisprudence evolved in the ICTR and SCSL it is now settled that even only the abettor and aider to perpetration of crimes(s) underlying in the statutes can be prosecuted.  

Let us have a look to the case of Charles Taylor (SCSL). On 26 April 2012, a Trial Chamber of the Special Court for Sierra Leone (SCSL), with Justice Richard Lussick presiding, convicted former Liberian President Charles Taylor for 'aiding and abetting' war crimes and crimes against humanity and has been sentenced to suffer imprisonment for 50 years by the sentencing order dated 30 May 2012. Charles Taylor was indicted by the Prosecutor in 2003 when he was a sitting president and Head of State of Liberia. He was not prosecuted and tried together with any other offender or principal or actual perpetrator. He was however acquitted of ordering the commission of the crimes - a more serious mode of participation than aiding and abetting. Taylor was also acquitted of superior/command responsibility and joint criminal enterprise (ICE). Abetting implies facilitating, encouraging, or advising the commission of a crime. Therefore we find that in law, either 'aiding' or 'abetting' alone is ample to render the perpetrator criminally liable.
The above international references also consistently supplement our own view that 'abetting', ' aiding', ' conspiracy' are distinct offences specified in the Act of 1973 and the persons responsible for any of these unlawful acts that substantially contributed the commission of offences enumerated in section 3(2)(a)(c) can lawfully be brought to justice.  

(iv) The Collaborators Order 1972 
The Collaborators Order 1972 was a distinct legislation aiming to prosecute only the local persons responsible for the offences scheduled therein. The offences punishable under the Penal Code were scheduled in the Collaborators Order 1972. While the 1973 Act was enacted to prosecute and try the crimes against humanity, genocide and other system crimes committed in violation of customary international law. In the case in hand we have found that there are sufficient grounds to presume prima facie that the accused was substantially associated with the orchestration and perpetration of the offences enumerated in the 1973 Act Therefore, we are disinclined to accept the proposition that non prosecution of the accused under the Collaborators Order 1972 ipso facto immune him from being prosecuted under the Act of 1973  

(v) Delay in bringing prosecution
From the point of morality and sound legal dogma, time bar should not apply to the prosecution of human rights crimes, Neither the Genocide Convention of 1948, nor the Geneva Conventions of 1949 contain any provisions on statutory limitations to war crimes and crimes against humanity. Article I of the Convention on the Non Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity adopted and opened for signature, ratification and accession by General Assembly resolution 2391 (XXIII) of 26 November 1968 provides protection against even any statutory limitation in prosecuting crimes against humanity, genocide etc. Thus, criminal prosecutions are always open and not barred by time limitation.  

Still the Nazi war criminals of the Second World War are being prosecuted. Trials of genocides committed during the 1973 Chilean revolution and the Pol Pot regime of Cambodia in the 1970s are now ongoing. It is to be noted that internationally recognised crimes were committed in Cambodia during 1975-1978 but its government waited for 25 years for attaining favourable situation in prosecuting the perpetrators till 2003 . The sovereign immunity of Slobodan Milosevic of Serbia, Charles Taylor of Liberia,. and Augusta Pinochet of Chile (with the Chilean Senate's life-long immunity) as the head of state could not protect them from being detained and prosecuted for committing genocides, crimes against humanity, and war crimes.  

In view of above settled position and in the absence of any statutory limitation, as a procedural bar, only the delay itself does not preclude prosecutorial action to adjudicate the culpability of the perpetrator of core international crimes. Indubitably, a prompt and indisputable justice process cannot be motorized solely by the painful memories and aspirations of the victims. It requires strong public and political will together with favourable and stable political situation. Mere state inaction, for whatever reasons, does not render the delayed prosecution barred by any law. Justice delayed is no longer justice denied, particularly when the perpetrators of core international crimes are brought to the process of justice. Considerations of material justice for the victims should prevail when prosecuting crimes of the extreme magnitude is on the process. However, there can be no room to insist that such a system crime can only be pursued within a given number of years. However, delay may create a doubt which can be well adjudicated at trial stage only. At this stage, we are to examine whether there have been sufficient reasons to presume that the accused had committed the offence(s) under the Act.  

(vi) Offences: Whether well characterized 
It is emphatically submitted that the offences enumerated in the Act are not well defined and as such it will cause prejudice the accused in preparing its own defence. The Rome Statute embodies elements required to constitute crimes underlying in the Statute. On the basis of flawed definition of crimes lawful prosecution cannot be initiated. The learned Counsel also drew our attention to the Statute of ICC (Rome Statute).  

It is to be noted that looking at the contemporary standards of definition of 'Crimes against Humanity' in various Statutes, this observation can be made that there is no 'consistency' among definitions. The definition of 'Crimes against humanity' as contemplated in Article 5 of the ICTY Statute 1993 neither requires the presence of 'Widespread and Systematic Attack' nor the presence of 'knowledge' thereto as conditions for establishing the liability for 'Crimes against Humanity'. True, the Rome Statute definition differs from that of both ICTY and ICTR Statutes.  

But, the Rome Statute says, the definition etc. contained in the Statute is 'for the purpose of the Statute'. So, use of the phrase "for the purpose of the Statute" in Article 10 of the Rome Statute means that the drafters were not only aware of, but recognized that these definitions were not the final and definitive interpretations, and that there are others. In establishing the 'Crimes against Humanity' in the Sierra Leone Court, there is no need to prove that the relevant crimes were committed with the knowledge of attack. We see that there is no actual consistency in the definition of 'Crimes against Humanity' as per the ICTY Statute, the ICTR Statute, the Rome Statute and the Sierra Leone Statute.  

The section 3(2)(a) of the Act states the 'attack' constituting the offences of crimes against humanity is required to have been directed against 'any civilian population' or 'persecution on political, racial, ethnic or religious grounds'. Similarly, genocide requires, as stated in section 3(2)(c) of the Act, that the unlawful acts to constitute the offence of genocide are to be committed 'with intent to destroy', in whole or in part', a 'national, ethnic, racial, religious or political group' . Therefore, the claim as to the non-existence of a consistent international standard for the definition of 'Crimes against Humanity' in the1973 Act is baseless. However, in this regard, the Tribunal shall not be precluded in seeking guidance from international references and evolved jurisprudence, if it is so indispensably required, at the stage of trial.  

Concluding view
In view of discussion as made above and considering the submissions advanced by both sides we are of the view that the application seeking discharge of the accused, having no substantial merit, is hereby rejected. Now we proceed to read out the charges. We have perused the formal Charge, statement of witnesses along with other documents submitted by the prosecution. We are of the view that there are sufficient materials before this Tribunal to presume that accused Muhammad Karnaruzzaman has committed offences specified under section 3(2) of the Act for which he is criminally liable under section 4(1) of the Act. Since we find that there are prima facie allegations against the accused, the charges are thus framed against him in the following manner.  

Charges  

We, Justice A.T.M Fazle Kabir, Chairman Justice Obaidul Hassan, Member and Judge Md. Shahinur Islam, Member of the Internationa.l Crimes Tribunal -2 hereby charge you, Muhammad Kamaruzzaman son of late Insan Ali Sarker of village Mudipara Police Station- Sherpur Sadar District- Sherpur at present House No.l05, Road No.4, Block No. F, Section 11, Journalists Residential Area, Pallabi, Dhaka as follows :-  

Charge 01 
that during the period of War of Liberation, on 29 June 1971 at about 11 :00 pm you, being the chief organiser of AI-Badar Bahini as well as leader of Islami Chatra Sangha and or member of group' of individuals led a group of members of AI-Badar Balllni, in apprehending and abducting a civilian Badiuzzaman son of Md. Fazlul Haque from the house of one Ahammad Member of village Ramnagar under Jhenigati Police Station, with common intention, and brought him to Ahammed Nagar army camp - wherein he was tortured through out whole night and on the following day he was gunned down to death on the street and then his dead body was thrown to water beneath an wooden bridge. Therefore, you Muhammad Kamaruzzaman are being charged for joining and substantially facilitating and contributing to the commission of offences of 'murder, torture and other inhuman act as crimes against humanity' caused to unarmed civilian, and also for ' complicity to commit such crimes' as specified in section 3(2)(a)(h) of the Act which are punishable under section 20(2) read with section 3(1) of the Act. You are thus liable for the above offences under section 4(1) of the Act.  

Charge 02 
that during the period of War of Liberation, in the afternoon of mid-May, you, being the chief organiser of AI-Badar Bahini as well as leader of Islami Chatra Sangha or member of group of individuals and your accomplices caused inhuman acts to distinguished pro-liberation intellectual Syed Abdul Harman the then Principal of Sherpur College, by compelling him walking throughout the town making him almost undressed and by constant whipping, as he was a gallant supporter of War of Liberation. Therefore, you Muhammad Kamaruzzaman are being charged for participating and substantially facilitating and contributing to the commission of offence of 'inhuman acts as crime against humanity' caused to Syed Abdul Hannan and also for 'complicity to commit such crime' as specified in section 3(2)(a)(h) of the Act which are punishable under section 20(2) read with section 3(1) of the Act. You are thus liable for the above offences under section 4(1) of the Act.  

Charge 3 
that during the period of War of Liberation, on 2S.7.1971 in the early morning, you being the chief organiser of AI-Badar Bahini as well as leader of Islami Chatra Sangha and or member of group of individuals advised your accomplices belonging to Al-Badar and Razaker Bahini who accompanied the Pak army in contemplating and taking steps towards commission of 'large scale massacre' , by raiding the village Sohagpur and accordingly they launched a planned attack and causing murder of unarmed civilians namely (1) Niamot Ali (2) Komed Ali (3) Raham Ali (4) Montaj Ali (S)Abul Bashar (6) Shahed Ali (7) Qari Hasen Ali (8) Iman Ali(9) Ibrahim (10)Safar Uddin (11) Beyahat Ali (12) Rahimuddin (13) Babar Ali (14) Kutumuddin (1S) Kitab Ali (16) Mohammad Ali (17)Momin Ali (18) Munnas Ali (19) Safiruddin(20) Rejat Ali (21) Abdul Quddus (22) Hafejuddin (23) Malek Fakir (24) Kbejur Ali (2S) Ali Hossain (26) Jamiruddin (27) Ansar Ali (28) Latif Ali (29) Hassan Ali (30) Bashira (31) Akber (32) Sahuruddin (33) Jahur Uddin (34) Seraj Ali (3S) Moyej Uddin (36) Nekbar Ali (37) Harun Ali (38) Dudu (39) Abdul Majid (40) Salam (41) Nur Mohammad (42) Kancha Sheikh (43) .Abdur Rahman (44) Sahar Talukder and 120 others and committed rape upon women. Since the havoc, the village is known as 'Bidhoba Palli ' (Widows village). Therefore, you Muhammad Kamaruzzaman are being charged for participating, substantially facilitating and contributing to the commission of offences of 'murder as crime against humanity ' and also for 'complicity to commit such crime' as specified in section 3(2)(a)(h) of the Act, 1973 which are punishable under section 20(2) read with section 3(1) of the Act. You are thus liable for the above offences under section 4(1 ) of the Act.

Charge 4 
that during the period of War of Liberation, on 23 .8.1971 at the time of Magrib prayer you being the chief organiser of AI-Badar Bahini as well as leader of Islami Chatra Sangha and or member of group of individuals instructed the members of AIBadar Babini to apprehend Golam Mostafa, a civilian, son of late Asir Uddin of village Gridda Narayanpur, Mostafabag thana road, Police Station and District- Sherpur and accordingly, from the place known as 'college morh ' at about 07:30 to 11 :00 am he was brought to the AI-Badar Camp which was set up in the house of one Surendra Mohan Saba. Thereafter, Tofael Ahmed, uncle of the apprehended person came to you and requested to set him at large. But in the night, you and your AI-Badar Bahini brought Golam Mostafa and one Abul Kasem to the 'Serih Bridge ' and gunned them down that caused death of Golam Mostafa but Abul Kasem survived as he could jump to the river even having gunshot injury on his fingers. Therefore, you Muhammad Kamaruzzaman are being charged for substantially participating, facilitating and contributing to the commission of offence of 'murder as crime against humanity' and also for 'complicity to commit such crime' as specified in section 3(2)(a)(h) of the Act which are punishable under section 20(2) read with section 3(1) of the Act You are thus liable for the above offences under section 4(1) of the Act.  

Charge 5
that during the period of War of Liberation, in the middle of Ramadan at about 07:30 pm you being the chief organiser of AI-Badar Bahini as well as leader of Islami Chatra Sangha or member of group of individuals and your 4/5 accomplices apprehended Md. Liakat Ali and Mujibur Rahman Janu from their houses located in the area of 'Chakbazar' under police station and district Sherpur and brought them to the Rajaker camp housed in the 'banthia building' at Raghunathpur Bazar wherein confining them they were subjected to torture. Thereafter, they were sent to police station wherein they kept detained for 04 days and then on your order they and 11 other civilians were shifted to 'Jhinaigati Ahammad Nagar Army Camp' . Thereafter, they were brought to a ditch behind the Ahammad Nagar UP office and then segregating three from the line the rest were gunned down to death and at the time of causing death by gun shot you and your accomplice one Kamran were present there. Therefore, you Muhammad Kamaruzzaman are being charged for substantially participating, facilitating and contributing to the commission of offence of 'murder as crime against humanity' and also for ' complicity to commit such crime' as specified in section 3(2)(a)(h) of the Act which are punishable under section 20(2) read with section 3(1) of the Act. You are thus liable for the above offences under section 4(1) of the Act.  

Charge 06 
that during the period of War of Liberation in 1971, in the month of November you being the chief organiser of AI-Badar Ballini as well as leader of Islami Chatra Sangha or member of group of individuals instructed one Didar who along with some members of Al-·Badar Ballini abducted Tunu and one Jahangir from Golki Bari and took them to the District Council Dak Banglow, Mymensingh. Subsequently Tunu was tortured to death there. Another abductee Jahangir was detained in the camp but he was let-off later on. Therefore, you Muhammad Kamaruzzaman are being charged for substantially participating, facilitating and contributing to the commission of offence of 'murder as crime against hun1anity' and also for ' complicity to commit such crime' as specified in section 3(2) (a) (h) of the Act which are punishable under section 20(2) read with section 3(1) of the Act. You are thus liable for the above offences under section 4(1) of the Act.  

Charge 07 
that during the period of War of Liberation, on 27 Ramadan at about 01 :00pm you being chief organiser of Al-Badar Bahini as well as leader of Islami Chatra Sangha or member of group of individuals being accompanied by 15-20 armed AI-Badar members raided the house of one Tepa Mia of village Golpajan Road, Kachijhuli, police station Kotwali under district Mymensingh abducted Tepa Mia and his elder son Zahurul Islam Dara and took them to Al-Badar camp situated at District Council Dak Bangalow. On the next early morning the Al-Badars took them along with five others to the bank of river Brahmmaputra . After tying their hands they were lined up and at first Tepa Mia was attempted to be charged with bayonet but he escaped by jumping to liver. The Al-Badars fired gun shots in the result Tepa Mia received injury on the leg and he managed to escape. But the rest 06 unarmed civilians were charged with bayonet to death. Therefore, you Muhammad Kamaruzzaman are being charged for substantially participating, facilitating and contributing to the commission of offence of 'murder as crime against humanity' and also for 'complicity to commit such crime' as specified in section 3(2)(a)(h) of the Act which are punishable under section 20(2) read with section 3(1) of the Act. You are thus liable for the above offences under section 4(1) of the Act. Thus you have committed the offences under section 3(2)(a)(h) which are punishable under section 20(2) read with section 3(1) of the Act.  

The aforesaid charges of crimes against humanity and also complicity to the commission of such crimes described under section 3(2)(a)(h) of the Act are punishable under the provisions of section 20(2) read with section 3(1) of the Act which are within the cognizance and jurisdiction of this Tribunal. And we hereby direct you to be tried by this Tribunal on the said charges. You have heard and understood the aforesaid charges.  

Question: Do you plead guilty or not.  

Answer: The charges read over and explained to the accused who pleaded not guilty and claimed to be tried.  

Let 02.07.2012 be fixed for opening statement and examination of prosecution witnesses. The trial shall be continuing on every working day until further order. The defence counsel is directed to submit a list of witnesses along with documents which the defence intends to rely upon, as required under section 9(5) of the Act by the date fixed.
Justice A.T.M Fazle Kabir, Chairman Justice Obaidul Hassan, Member Judge Md. Shahinur Islam, Member

2 July 2012: Kamruzuman trial opening

Tribunal Two


The trial of Kamruzzaman started. Please note that between 16 April (when the case was moved to Tribunal two), and 3 July (the beginning of the trial) no detailed notes of proceedings are available. However the key orders/applications involving tribunal two in this period (and tribunal one before) are set out below..
- Prosecution application for charge framing (in tribunal 1)
- Defence response (in tribunal 1) 
- Tribunal order to transfer case to tribunal 2
- Tribunal order of Indictment
- Defence review application
- Tribunal order on review application

Opening of Trial: prosecution statement
Golam Arif Tipu, the Chief Prosecutor) started reading out from the opening statement of Kamruzzaman. A summary is set out below:

For the first time, the trial procedure against the accuseds of War Crime happened during the period of Liberation War of 1971 has been started in independent Bangladesh. It has been started after the long time of four decades. In our Liberation War, about 30 lacs people died, 2 lacs women were raped and 1 crore people had to ran away from their own country. We have no language but contempt for those forces called Razakar bahinee, Shanti Bahinee, Al Badar, Al Shames, Islamee Chatra Sangha for their activities in the Liberation War. These forces caused genocide, rape, loot and conflagration in 1971. And, accused Md. Kamarujjaman was directly involved in these types of criminal activities. We will serve all necessary proofs against him.

After being elected in 2008, this Government has started trial against the criminals, though late. For the administration of justice these trials’ importance is beyond description.

The allegations against the accused are undoubtedly well established. We want to bring him before justice for his planned and specific crimes. The accused not only assisted the Pakistani Armed Forces, but also involved in direct genocide.

Formal allegation against the accused was brought on 5 December, 2011. He was sought to be alleged under sections 3(1), 3(2) and 4(2) of the International Crimes Tribunal Act, 1973. Charge was framed against him on 04/6/2012. Allegations against him were brought on 7 counts which are punishable under section 20 of the said Act.

[At this moment, Chairman of the Tribunal told him to shorten the statement.]

Chief Prosecution then started to tell about the proclamation of independence. According to his statement, after the starting of mass genocide as well as anarchy at the night of 25th march around the whole East Pakistan, Bangabandhu Sheikh Mujibur Rahman proclaimed independence of the land at midnight and was arrested after that. And, Bangladesh achieved its independence after nine months long sanguinary and destructive war.

Saiful Islam, the prosecutor then took over.

This case involves commission and intention to commit genocide. And, on 25th March the Pakistanee Armed Forces aggressively attacked millions of non-armed people. And subsequently they were assisted and followed by the Rajakar Bahinee, Shanti Bahinee, Al Badar Bahinee etc.

Then he described the historical background behind the liberation movement.

He told that the preparation to commit Operation Search Light was begun from February, 1971. On 11, 19 and 26 February Yahya and Bhutto sat for confidential meetings for that purpose.

Then Justice Md. Shahinur Islam again told him to shorten his statement.

Saiful Islam (Prosecutor) told that in conjunction with Pakistani Army Jamaat-e-Islami created Shanti Bahinee as auxiliary force of the main force. At the period of Liberation War, the small conservative religion based political parties united to defend freedom fighters. At first Rajakar Bahini was created by the Jamaat leader of Khulna, Md. Yusuf Ali containing 96 members. Through the East Pakistan Rajakar Ordinance, the former Ansar Bahinee was abolished and their whole assets were donated to the Rajakar Bahinee. They were trained from one and half to two weeks and given monthly allowance.

On 22 April 1971, not getting much reliance upon Rajakar Bahinee, Mr. Ashraf Hossain of Jamalpur started the Al Bador Bahinee containing the members of Islami Chhatra Sangha. Mr. Kamarujjaman was the leader of Islami Chhatra Sangha of Sherpur. This Force was directly involved in murder of the bangalee people especially the intellectuals of the land.

Nurjahan Mukta, then took over.

She described about the establishment of Al Badar Bahinee. She gave references of different books and journals. With the implicit consent of Pakistani Government this force was formally established on May, 1971. These forces were trained to use different arms. Their training camps were used as torture camps. Monthly allowance of per head Al Badar member was 90 taka. Besides they were provided convenience allowance. Mr. Kamarujjaman was the main organizer of this Al Badar Bahinee.

Kamarujjaman was the resident of Mudipara, Sherpur. His present address is Pallabi, Dhaka. He started politics of Islami Chhatra Sangha in 1967 while he was the student of class ten. Subsequently he became the President of Islami Chhatra sangha of Larger Maymensing district. Under his supervision short armed trainings were given to the Al Badar Bahinee. His actions led to kill the innocent people including Hindus and loot and destruction. Planning and the implementation of planning to commit war crime was incurred by him which falls under sections 3(2), 3(1) and 4(2).

Then Rana Das Gupta then took over.

He gave references of different books and journals from which it is clear that Mr Kamarujjaman was directly involved in murder, rape and loot. His Al Badar Bahini was a killing squad of Pakistani Army. He and his Bahinee used Surendranath Saha’s house to torture brutally Bangalee people day after day. In Jamalpur this Al Badar Bahini voluntarily worked to commit destruction. (Book: Ekattorer Ghatok o Dalalra Ke Kothay, Pg: 187) under the leading of Kamarujjaman the activists of Shanti Bahinee were included in the Al Badr Bahini.

Nurjahan Mukta then took over.

She told about the constitution of the International Crimes Tribunal in Bangladesh. According to her, in last four decades we never saw any apologies from these war criminals. Criminals of Nazi host were trialed through Nuremburg Tribunal. Till now, they have no voting right. But in our country war criminals got voting right within ten years of their crimes. The new Government of war devastated new born country was busy in tackling war damage, food crisis etc. Yet, Bangladesh Dalal Ain, 1972 was passed. In 1972, politics relating to religion was banned. In 1973, Bangabandhu proclaimed general pardon to only those who were not directly involved in grievous crimes. He attempted to punish the accused of genocide, rape, robbery etc. But in 1975, after the brutal killing of the whole family of Sheikh Mujibur Rahman, the punishment procedure was hampered. Subsequently, taking power of Mushtaq Ahmed and Ziaur Rahaman, legalization of religion based politics, recognizing voting rights of the war criminals, granting citizenship to recognized criminals, abolition of Article 12 from the constitution, making of the list of freedom fighters doubtful etc. paved the way of these Pakistanee agents to become stronger in the land of Bangladesh.

At this moment Tajul Islam (Defence Counsel) objected saying that this is a political speech. On page 72, it is stated that ‘proved criminals’ which is not fair.

Then honorable Justices assured him that this comment is not accepted by them.

Nurjahan Mukta and Saiful Islam then in turn continued:

They provided examples of International laws under which criminals against humanity would be trialed. The International Crimes Tribunal Bangladesh was constituted on May, 2010. In section 19 (3) of the Tribunal, importance was given to judicial notice instead of common knowledge. The crimes committed by the war criminals also violated Article 3 of Geneva Convention, 1949. The honorable Tribunal has the complete authority to trial those crimes. International Crimes Tribunal of Rwanda also praised the International Crimes Tribunal Act,1973 of Bangladesh.

Accused Kamarujjaman and his force committed crimes against humanity in larger Maymensingh district. To kill intellectuals within a short time, Al Badar Bahinee was created taking the members of Shanti Bahinee. They were directed with the direct supervision of Pakistani Armed Forces. And the main organizer was the accused Kamarujjaman and his host. Their heinous activities still astonishes the people of the world. Such types of incidents are rare in history. Nobody is beyond the law. And, in the universal reality, punishment of the war criminals is the demand of time.

After submission of the opening statement by the prosecutors, Mr. Tajul Islam said that the defense have not got a copy of the charge framing order yet. To complete, copy and finalize documents and discuss with the accused he prayed four weeks.

The honorable Tribunal fixed 15 July next date for taking evidence.