Kamruzaman indictment review order

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Kamruzaman indictment review application

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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

1 Apr 2012: Kamruzzaman charge response

The defence counsel prayed for an adjournment relating to proceedings against Motiur Rahman Nizami as their senior counsel was absent. A new date of 8th April, 2012 was agreed.

In the absence of Abdur Razzzak, the defence counsel Munshi Ahsan Kabir then started reading the written application against the charge framing of charges against Md. Quamaruzzaman. (This follows on from the frame charging application.)

1. It is recalled that on 31 January 2012 this Hon’ble Tribunal took cognizance of offences under sections 3 (2), 4 (1) and 4 (2) of the International Crimes (Tribunal) Act 1973 as amended 2009 (hereinafter: IC(T)A) against the Accused-Petitioner, stating that the Prosecution had established a prima facie case as required under Rule 29 (1).

2. The Tribunal ordered the Prosecution to serve the relevant papers and documents on the Accused-Petitioner on 7th January 2012. The Prosecution complied with this order and the Defence received the Formal Charge along with the statements of 46 witnesses in support of the Prosecution’s case against the Accused-Petitioner.

3. That the Petitioner sets out in the paragraphs below a brief history of the initiation of the present proceedings against the accused petitioner under the International Crimes (Tribunals) Act 1973 in response to the statements made in the Formal Charge.

4. That it is the political campaign of the ruling party to destroy the Bangladesh Jamaat-e-Islami (“Jamaat”). Immediately after coming to power in January 2009, it began its harassment of against Jamaat. Although Jamaat is a lawful party with two Members of Parliament, the office of Jamaat is occupied by the Police. No one can enter or leave Jamaat office without being subjected to scrutiny by the Police.

5. That according to latest information over 2000 cases have so far been instituted against more than 30000 Jamaat leaders and workers across the country. Each of the Central Leaders including the Amir and the Secretary General are facing over a dozen false cases including sedition charges. The number of cases lodged against the Jamaat leaders are on the increase. Those who are getting bails from the courts (lower or superior) are mostly arrested on release from the jail gate in connection with another case. The initiation of these proceedings under the IC(T)A against the accused petitioner is a continuation of the harassment of the Jamaat members.

6. The Petitioner is a renowned politician, writer, journalist and Islamic thinker. He was born in Sajbarkhila, a Village of Sherpur District on the 4th of July 1952. His father Alhaj Mvi. Insan Ali Sarkar was a businessman. The petitioner started his education in his native village. He completed his Primary education from Charkumri Government Primary School and passed Secondary School Certificate Examination in 1967 from Sherpur G.K.M Institute. He passed the higher Scondary School Certificate Examination in 1972, Bachelor of Arts B.A in 1974 and Master of Arts in Journalism in 1976.

7. That the Petitioner always stood first at school and was awarded with Residential Scholarship in Class Eight from Sherpur G.K.M Institute. He passed the S.S.C Examination securing 1st Division with 4 letters (A+) and was awarded residential Scholarship. He passed the B.A Examination with distinction. He completed his M.A from Dhaka University in Journalism.

8. The petitioner started his professional career with Journalism. While in College he worked in a national daily. He joined as an Executive Editor of the monthly Dhaka Digest in January1 980. Thereafter, he took the charge of well circulated Weekly Sonar Bangla as it’s Editor in January 1981 and till today he is doing the same job. He also joined the Daily Sangram in November 1983 and served as the Executive Editor till 1993. The petitioner is also a good writer. He has written a numbers books, five of those were published. Moreover, many of his articles were published in different newspapers and Journals on Politics and International Affairs.

9. That the Petitioner joined Jamaat city unit in October 1979 and took oath as Rukun (member) on the 16th December 1979. He was appointed as the Joint Secretary of Dhaka City Jamaat during 1981-82 and Publicity Secretary of Central Jamaat 1983-1991. From 1992 he has been working as the Assistant Secretary General of Jamaat. He played a vital role as the member of Jamaat political and Liaison committee in the movement of restoration of democracy in Bangladesh from 1983-90 and in the movement for Caretaker Government during 1993-95.

10. That following the surrender of the Pakistan Army and their auxiliary forces in December 1971 to the Joint Command of Bangladesh and Indian Forces, all the Prisoners of War were taken to India. 16 months after the surrender, in April 1973, the Government of Bangladesh published a notification that following investigation, the Government has identified 195 members of the Pakistan Army as alleged war criminals. It was further announced that a law would be promulgated soon to try those 195 alleged war criminals. In order to pass a legislation to try the alleged war criminals, the Constitution (1st Amendment) Act was passed on 15th July 1973 to deny fundamental rights and constitutional rights to those against whom allegations of whom war crimes have been made. Under the provisions of the First Amendment, the right to move the Supreme Court under Article 102 of the Constitution or for any other remedy was denied to them. Following the First Amendment, on 20th July 1973, Parliament passed the International Crimes (Tribunal) Act 1973. It will be seen from the Parliamentary debates preceding the passing of the 1973 Act, that the intention of Parliament was to try the 195 Prisoners of War for alleged war crimes.

11. The Petitioner was not included in the list of 195 Prisoners of War.

12. In February 1974, Pakistan recognized Bangladesh. In April 1974, a tripartite agreement was signed by the Foreign Ministers of Bangladesh, India and Pakistan, in which it was stated that the 195 Prisoners of War had been granted clemency by the Government of Bangladesh. Following the signing of this tripartite agreement, all Prisoners of War were sent to Pakistan without any trial. A chapter in history was closed.

13. That as stated above the petitioner about 19 years of age during the Liberation War of 1971. No allegation of war crimes was brought against him during or after the War. No proceedings were ever commended against him under the Penal Code or the IC(T)A in relation to any crime committed during the War. In fact, only after the petitioner joined active politics allegations of war crimes have been made against him. The allegations were made when he became active member of Bangladesh Jamaat-e-Islami. In fact he is now being tried for war crimes solely because he is a top ranking leader of the Bangladesh Jamaat-e-Islami which is one of the major opposition parties in the country. It is only on 21st July 2010, almost 40 years after the commission of the alleged war crimes, the War Crimes Investigation Agency started formal investigation against him by filing a Complaint Register resulting in the lodging of Formal Charge on 12th January 2012. This delay in the starting of criminal proceedings against the Petitioner is totally unprecedented in the history of war crimes and proves conclusively that this is a prosecution for a political purpose.

14. The Second World War came to end in the Western front in August 1945. The first phase of the Nuremburg which was the first war crimes trial in modern history, started on 20th November 1945 and ended on 1st October 1946. The list of the war criminals was prepared during the War , the particulars of the offence were also prepared during the War and the trial started within a reasonable period.

15. In this regard it stated that on 19th January 1946, in the immediate aftermath of the Second World War, the International Military Tribunal for the Far East (also known as the Tokyo War Crimes Tribunal) was set up. Similarly, immediately following the breakup of the former Yugoslavia and the cessation of hostilities, the International Crimes Tribunal for Former Yugoslavia (ICTY) was established by a UN Security Council Resolution 827 dated 25th May 1993. In Rwanda as well following the end of the war, the International Crimes Tribunal for Rwanda (ICTR) was established by UN Security Council Resolution 955 dated 8th Novemnber 1994. However, in the instant case, the International Crimes (Tribunal), Dhaka was established 40 years after the end of Liberation War in 1971.

16. Furthermore, Radovan Karadic and Radco Mladic were indicted soon after the cessation of hostilities in Former Yugoslavia. Mladic was indicted on 25.7.1995. He was arrested from hiding on 26.5.2011 and charged on 3rd June 2011. Similarly, Radovan Karadic was indicted on 25.7.1995. He was arrested in Serbia and immediately taken into the custody of the Tribunal on 30th July 2008. However, as above-mentioned, in the present case, there has been a delay of 40 years in instituting proceedings against him.

17. This long and inordinate and inexplicable delay in bringing the charges against the Petitioner proves conclusively that because of the Petitioner’s political rivalry with the party in power, details of which have been stated in the paragraphs above, the Petitioner has been falsely implicated in the case.

18. The Defence recalls that Rule 37 of the Hon’ble Tribunal’s Rules of Procedure provides:

“When the accused appears or is brought before the Tribunal, and if the Tribunal, upon consideration of record of the case and documents submitted therewith and after giving the prosecution and the accused an opportunity of being heard, finds that there is no sufficient ground to presume that the accused has committed an offence, it shall discharge the accused and record its reasons for so doing”.

19. That for the following reasons the Accused-Petitioner prays that this Hon’ble Tribunal issues an order directing for his discharge.

20. There are a number of requirements that must be met in order for an Accused-Petitioner to be sufficiently charged. These requirements are provided for in both domestic and international law. The Tribunal’s own legislative structure provides for certain particulars to be provided for by the Prosecution in its proposed charges against an accused. Section 16 IC(T)A provides that:

“Every charge against an accused person shall state-
i. the name and particulars of the accused person;
ii. the crime of which the accused person is charged;
iii. such particulars of the alleged crime as are reasonably sufficient to give the accused person notice of the matter with which he is charged”.

The use of the word “shall” in section 16 ICT(A) indicates that these requirements are mandatory.

21. This is supported by Rule 20 (1) of the Rules of Procedure which provides:

“At the time of submitting a formal charge in the form of a petition, it must contain the name and address of the accused person, witness, and the date, time and place of the occurrence”.

22. It is therefore submitted that under the framework provided for by section 16 IC(T)A, the purpose of the framing of the charges is to characterize the alleged facts in accordance with the legal elements of a crime so as to provide the Accused-Petitioner with the opportunity to raise his defence. This is a practice developed in criminal proceedings as provided for in section 221, 222 and 223 of the Code of Criminal Procedure. In particular section 221 (5) provides that when a charge is made, it is the “equivalent to a statement that every legal condition required by law to constitute the offence charge was fulfilled in the particular case”. Section 222 of the Code provides that particulars as to time, place and person must be stated in the charge.

23. Both the IC(T)A framework and domestic criminal practice are in conformity with international standards. The Tribunal will be familiar with Article 14 (3) (a) of the International Covenant for Civil and Political Rights (hereinafter: ICCPR) which provides for the right to be informed of the charge:

“To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him (emphasis added)”.

24. This right under Article 14 (3) (a) has been discussed by the Human Rights Committee (hereinafter: HRC), which is tasked with administrating and interpreting ICCPR provisions. In its General Comment No.32 the HRC stated: “The specific requirements of subparagraph 3 (a) may be met by stating the charge either orally - if later confirmed in writing - or in writing, provided that the information indicates both the law and the alleged general facts on which the charge is based”.

25. As Bangladesh is a state party to the Rome Statute for the International Criminal Court (hereinafter: ICC) the Tribunal will recall both Article 67 (1) ICC, which guarantees the above right, as well as the practice of the Pre-Trial Chamber at the International Criminal Court which has held that the document containing the charges must include the full name of the person and any other relevant identifying information; a statement of the facts; including the time and place of the alleged crimes, which provides a sufficient legal and factual basis to bring the person or persons to trial. Including relevant facts for the exercise of jurisdiction by the Court; a legal characterization of the facts to accord both with the crimes and the precise form of participation (Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, Decision Pursuant to Article 61 (7) (a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 208.).

26. The purpose of this fundamental right provided for in international and domestic law, is to provide the accused with the information necessary for the preparation of his defence in order to uphold fair trial guarantees. It is respectfully submitted that the current charges against the Accused-Petitioner cannot be framed as they provide and rely on both an insufficient legal basis and contain insufficient factual information and as such would result in an unfair trial by both domestic and international standards.

27. That on page 108 of the Formal Charge, the Prosecution prays that the Tribunal to take judicial notice of the commission of “crimes against humanity, crimes against peace, genocide, war crimes, violation of Geneva Convention of 1949, other crimes under international law” and the fact that these crimes were committed by Pakistani Military with effective and sole contribution from “Jamaat-e-Islami, Islami Chattra Sangha, Peace Committee, Razakar force, Al-Badr force, Al-Shams force, Al-Mujahid”. This request is submitted under section 19 (3) IC(T)A which provides:

“A Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof”.

28. Facts of common knowledge have been defined in the jurisprudence of ad hoc international tribunals as facts that are “so notorious, or clearly established or susceptible to determination by reference to readily obtainable, and authoritative sources that evidence of their existence is unnecessary” (Prosecutor v. Semanza ICTR -97-20, Decision on the Prosecutor’s Motion for Judicial Notice and Presumptions of Fact pursuant to Rules 94 and 54, 3 November 2000, para. 25. See also Prosecutor v. Perisic IT-94-81-PT, Decision on Prosecution’s Motion for Adjudicated Facts Concerning Sarajevo, 26 June 2008, paras. 13-17; Prosecutor v. Sesay et al. SCSL-04-15-PT, Decision on Prosecutions Motion for Judicial Notice and Admission of Evidence, 24 June 2004).

29. Therefore when the International Criminal Tribunal for Rwanda took judicial notice of the fact that genocide took place in Rwanda in 1994, it was on the basis that:

“Trial and Appeal Judgments thereby produced (while varying as to the responsibility of particular accused) have unanimously and decisively confirmed the occurrence of genocide in Rwanda, which has also been documented by countless books, scholarly articles, media reports, U.N. reports and resolutions, national court decisions and government and NGO reports”. Prosecutor v. Karamera et al. ICTR-98-44-AR73(C), Decision on Prosecutor’s Interlocutory Appeal of Decision on Judicial notice, 16 June 2006, para. 35).

30. It is respectfully submitted that the commission of crimes listed in paragraph 12 above have not been previously established in previous legal proceedings or by independent, international authorities. Nor is it “so notorious” or “clearly established” that these alleged crimes were committed by the Jamaat-e-Islami, Islami Chatra Sangha, Peace Committee, Razakar force, Al-Badr force, Al-Shams force or Al-Mujahid force.

31. Indeed if it was a fact of common knowledge that these crimes were committed by the abovementioned forces then this would be in direct conflict with Counts 1 to 8 in which the Prosecution seeks to charge the accused with the commission of genocide and alternative forms of crimes against humanity.

32. Furthermore, it is submitted that the Prosecution’s request for judicial notice has been presented incorrectly. This request ought to have been made in a separate application allowing for the proposed charge document to include factual basis for each count alleged. In requesting judicial notice in its charge document, the Prosecution has failed to provide the Accused-Petitioner with sufficient notice of charges brought against him.

33. For this reason it is submitted that judicial notice is not taken of the alleged facts listed on page 108 of the proposed charge document.

34. That As abovementioned, section 16 ICT(A), Article 14 (3) (a) ICCPR and Article 67 (1) (a) ICC all guarantee the right of an accused to be provided with reasonably sufficient information of a specific crime with which he is charged detailing the nature and content of the charge in order to give the accused notice of the matter with which he is charged. It is respectfully submitted that for the following reasons, the Prosecution’s proposed charging document is in direct violation of this fundamental guarantee and hence the Petitioner is liable to be discharged.

i. Misleading factual basis
ii. Incorrect charging
iii. Duplicitous charging
iv. Cumulative charging
v. Uncertain scope

Each of the above reasons are dealt with in detail below.

35. That it is submitted that a charge is made up of both a legal and a factual component in order for an accused to have sufficient notice of the charges brought against him. This is consistent with section 16 (1) IC(T)A which provides that the charges sought by the Prosecution must contain the particulars and facts of an alleged offence as the crimes of which the accused person is charged in order to “give the accused person notice of the matter with which he is charged”.

36. In its proposed charging document, the Prosecution do not provide the factual basis of each charge within the count itself; instead relying on previous paragraphs of the proposed charging document. For example, Allegation No. 5 (in paragraph No.9 of the Formal Charge) seeks to charge the Accused-Petitioner with deportation as a crime against humanity, relying on the facts mentioned in paragraph 8.6.

37. However, in several instances, the Prosecution refers to paragraphs that are of no relevance to the facts relied upon in the charge. For example, in Allegation No. 1 (in paragraph No.9 of the Formal Charge) the Prosecution seek to charge the Accused-Petitioner with conspiracy to genocide by “giving inciting, revengeful, hateful speech”, relying on paragraphs 8.8, 8.9, 8.13, 8.14, 8.15, 8.17.1, 8.17.2, 8.17.3 of the proposed charging document. However, paragraphs 8.15 and 8.17.1 refer to the alleged military training allegedly organised by the Accused-Petitioner on 16 May 1971. Paragraphs 8.17.2 and 8.17.3 detail events of alleged torture by the Accused-Petitioner. In sum, paragraphs 8.15, 8.17.1, 8.17.2 and 8.17.3 do not mention any reference to hate speeches as described by the Prosecution in Allegation No. 1 (in paragraph No.9 of the Formal Charge).

38. Furthermore, in Allegation No. 4 (in paragraph No.9 of the Formal Charge), the Prosecution seek to charge the Accused-Petitioner with extermination as a crime against humanity relying on events described in paragraph 8.9 which states:

“It is mentioned in a report of the Daily Sangram dated 16th August, 1971 that on 25th Azadi day (Freedom Day) a symposium and procession was arranged by Al Badr force. This symposium arranged at the local Muslim Institute was chaired by the chief organizer of Al Badr force Mr. Kamaruzzaman. It is known from a cable that in the symposium the speakers gave warning about the enemies who were trying to destroy the country. That symposium of Kamaruzzaman and his procession and hate speech created fear among the mass people and his speech and his instruction persuade his party workers to finish off the pro liberation innocent Bengalis”.

39. As detailed below, extermination involves the mass murder of a population. In paragraph 8.9 of the proposed charging document, there is no mention of any killing or murder let alone on a mass scale. Indeed paragraph 8.9 of the proposed charging document only details the alleged mass fear invoked in followers.

40. Pursuant to the purpose of section 16 IC(T)A and Rule 20 (1) of the Rules of Procedure, it must be identifiable to the accused as to which legal charge is brought against him under the jurisdiction of the Tribunal listed in section 3 (2) IC(T)A. It is respectfully submitted that the Prosecution have failed to do so in its proposed charging document.

41. For example, in Allegation No. 1 (in paragraph No.9 of the Formnal Charge) the Prosecution seeks to charge conspiracy to commit genocide. However, it has sought to do so pursuant to section 3 (2) (a) IC(T)A (crimes against humanity) and not section 3 (2) (c) IC(T)A (genocide).

42. Furthermore, in Allegation No. 4 (in paragraph No.9 of the Formal Charge) the Prosecution seeks to charge extermination as a crime against humanity but has failed to indicate under which section it seeks to charge this with, only referencing section 3 (2) IC(T)A in general. In light of the incorrect charging mentioned in paragraph 26 above, it is important for the Prosecution to be thorough and targeted in this regard in order to avoid any confusion as to the nature of the charge being sought.

43. In its proposed charging document the Prosecution has attempted to charge several offences within one charge and failed to distinguish between different types of crimes against humanity. For example, in Allegation 6 (in paragraph No.9 of the Formal Charge) the Prosecution seeks to charge the Accused-Petitioner with torture as a crime against humanity under section 3 (2) (a) IC(T)A. However, the charge details events of torturing and persecution. Similarity in Allegation No. 7 (in paragraph No.9 of the Formal Charge), the Prosecution seeks to charge the Accused-Petitioner with rape as a crime against humanity, but details events of rape and killings.

44. In Prosecutor v. Jean-Pierre Bemba Gombo (ICC-01/05-01/08 Decision Pursuant to Article 67 (1) (a) and (b) Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, paras 205 and 312), the ICC Pre-Trial Chamber failed to confirm charges of torture and inhumane acts when used in conjunction with the charge of rape with respect to the same act.

45. It is respectfully submitted that this method of charging is a form of duplicitous charging which is prejudicial to the Accused-Petitioner as it fails to differentiate between separate offences within one charge. The end result is that any conviction or acquittal of an offence within a multi-offence count will not be recognized which is particularly important at the sentencing stage.

46. In Allegation No. 2 (in paragraph No.9 of the Formal Charge), the Prosecution seeks to charge genocide pursuant to section 3 (2) (c) (iii) IC(T)A. It refers to the liability of the Accused-Petitioner for “committing genocide by killing only males and by raping females”. Furthermore, it relies on paragraph 8.7 for this factual basis for the commission of this allegation.

47. In Allegation No. 7 (in paragraph No.9 of the Formal Charge), the Prosecution seeks to charge rape as a crime against humanity pursuant to section 3 (2) (a) IC(T)A. It refers to the liability of the Accused-Petitioner for crime against humanity “by killing males and raping females”. It also relies on paragraph 8.7 for the factual basis for the commission of this offence.

48. It is respectfully submitted that there is no substantial difference in the conduct being charged in both counts, as referenced in paragraph 8.7. This is therefore a form of cumulative charging which is prejudicial to the defence of an accused.

49. The Defence reiterates the importance of having a specific charging document which details the nature and cause of the charges brought against an accused. In Allegation No. 9 (in paragraph No.9 of the Formal Charge), the Prosecution seeks to charge the Accused-Petitioner with “liability for all crimes”. This is exceedingly broad and scope and defeats the object and purpose of any charging document.

50. Additionally, it is unclear as to how the Prosecution seeks to charge the events listed in paragraph No. 11 which detail: the alleged superior status of the Accused-petitioner, the conspiracy in criminal activities, the planning of criminal organisation, incitement, and complicity. Unlike previous allegations, these are not subtitled as separate allegations. Furthermore, in Allegation Nos. 1 to 8, the Prosecution has already detailed the modes of liability of the Accused-Petitioner, citing reference to either section 3 (2) (g), 3 (2) (h), 4 (1) or 4 (2). To add further confusion to the matter, the Prosecution has also detailed events of murder and torture in Paragraph No. 11 despite seeking to charge these crimes in Allegation Nos. 3 and 6 respectively.

51. Furthermore, there is a recognised bar to convicting an accused for both his direct responsibility in the commission of a crime and his responsibility as a result of his superior responsibility. This was most recently upheld by the ICTY Trial Chamber in Prosecutor v Dordevic:

“Where both Article 7(1) [planning, instigation, ordering and commission] and Article 7(3) [command responsibility] responsibility are alleged under the same count, and where the legal requirements pertaining to both of these heads of responsibility are met, a Trial Chamber should enter a conviction on the basis of Article 7(1) only, and consider the accused’s superior position as an aggravating factor in sentencing” (IT-05-87/1-T, Judgment, 23 February 2011, para. 1891).

52. It is submitted that the matters detailed in paragraph No. 11 are prejudicial to the Accused-Petitioner, as the Prosecution has failed to differentiate between the alternative modes of culpability. The end result is that an accused can be convicted twice for identical conduct amounting to unfairly cumulative convictions and subsequent sentences.

53. For the abovementioned reasons it is submitted that the Prosecution has failed to produce a comprehensive and comprehendible proposed charging document which adequately notifies the Accused-Petitioner of the charges brought against him. For these reasons, the Accused-Petitioner prays that the Hon’ble Tribunal does not frame charges in relation to Allegation Nos. 1, 2, 4, 6, 7, 9 (in paragraph No.9) or in paragraph No. 11.

54. The Tribunal will recall the principle of nullum crimen sine lege enshrined in Article 15 (1) ICCPR:

“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby”.

55. For this reason, proceedings brought against the Accused-Petitioner must be guided by definitions of crimes under international customary law as it stood in 1971, at the time of the alleged commission of crimes. Definitions of crimes are fundamental to adversarial proceedings and without which, neither the Prosecution, Defence or Tribunal can be sure as to which threshold must be passed in order to secure either an acquittal or conviction.

56. In Allegation No.2 the Prosecution seek to charge the Accused-Petitioner with genocide which is a crime under section (3) (2) (c) IC(T)A. The charge details that:  “The accused was the chairman of Mymensingh district Islami Chhatro Shongho on 1971 since Al Badr is a paramilitary force whose chief organizer was the accused then he has the superior/commander status. Since, the accused is a high ranking commander he is liable for the crimes committed by all his subordinate workers under the section 4(1); 4(2) and for committing genocide by inflicting serious physical injuries, taking preparation for genocide, organizing the killing squad of Al Badr force and recruiting and providing military training to the workers of Islami Chhatro Shongho.

In paragraph 8.7 he is liable for committing genocide by killing only males and by raping females (emphasis added)”.

57. Paragraph 8.7 of the proposed charging document provides:  “According to the plan and advice of the accused Kamaruzzman on 25th July 1971 Pakistani army, Rajakar and Al Badr surrounded the Shohagpur village and killed all men and raped all young women (from that day the village is known everywhere as the village of the widows). Around 120 men were killed at Shohagpur village. The survivors arranged the burial of the killed people. Pakistani army, Rajakar and Al Badr committed this mass killing according to the plan of the accused Kamaruzzaman…”

58. Genocide is a crime under section 3 (2) (c) IC(T)A which specifically provides that genocidal acts can only be proven if they have been “committed with intent to destroy, in whole or in part, a national, ethnic, racial, religious or political group (emphasis added)”. It is respectfully submitted that the Prosecution has failed to determine the specific group allegedly targeted by the Accused-Petitioner. In particular, it is submitted that there is no mention of genocide being committed on a gender basis under section 3 (2) (c) IC(T)A and as a result the requisite intent has not been established in Allegation No. 2.

59. That as abovementioned, in Allegation No. 4 the Prosecution seeks to charge the Accused-Petitioner with extermination as a crime against humanity. Unlike the above submission in paragraph 44, extermination is listed as a crime against humanity under section 3 (2) (a) IC(T)A. In the absence of a definition of extermination in the Act, it is in the interest of justice to refer to the jurisprudence of ad hoc international and hybrid tribunals. Indeed, the Tribunal will recall that in its order dated 3 October 2011 in ICT BD Misc. Case No. 01 of 2011 in the matter of Delewar Hossain Sayedee, it stated that: “the Tribunal may take into account jurisprudential developments from other jurisdictions should it feel so required in the interests of justice”. It further emphasized that “the Tribunal may take into account normative developments should it feel so required in the interests of justice”. This order was made in relation to the alleged charges against Delewar Hossain Sayedee.

60. The ECCC Trial Chamber has determined that under customary international law in 1971, extermination was defined as: “Extermination, whose customary status is also undisputed, is characterized by an act, omission or combination of each that results in the death of persons on a massive scale. The perpetrator’s role in the death of persons on a massive scale may be remote or indirect. Actions constituting extermination include creating conditions of life that are aimed at destroying part of a population, such as withholding food or medicine. There is no minimum threshold for the number of victims targeted. Rather, the question of whether the requirement of scale has been met is assessed on a case-by-case basis against all relevant circumstances Nonetheless, it has been suggested that one or a limited number of killings would not be sufficient to constitute extermination. Extermination contemplates acts or omissions that are collective in nature rather than directed towards specific individuals. There is however no requirement that the perpetrator intended to destroy a group or part of a group to which the victims belong. Knowledge of a “vast scheme of collective murder” is not an element of extermination. It must be shown that the perpetrator acted with “the intent to kill persons on a massive scale, or to inflict serious bodily injury or create conditions of life that lead to death in the reasonable knowledge that such act or omission is likely to cause the death of a large number of persons.” (footnotes omitted)”. (Prosecutor v. Kaing Guec Eav (Duch), No. 001-18-07-2007/ECCC/TC, Trial Chamber Judgment, 26 July 2010, paras 334-338)

61. Therefore for an accused to be liable of extermination as a crime against humanity there must be killing on a massive scale. It is respectfully submitted that the Prosecution has failed to establish that many deaths let alone mass killings occurred in Allegation Nos. 4 and its adjoining factual basis in paragraph 8.9 of the proposed indictment.

62. In Allegation No. 5 (in paragraph No.9 of the Formal Charge) the Prosecution seeks to charge the Accused-Petitioner with deportation as a crime against humanity pursuant to section 3 (2) (a) IC(T)A. in customary international law, deportation refers to the forced displacement of persons by expulsion or other coercive acts form the area in which they were lawfully present (see Prosecutor v. Stakic, IT-97-24-A, Appeals Judgment, 22 March 2006, 278 and Article 7 (2) (d) ICC). The jurisprudence of the ad hoc international tribunals and ICC, emphasise the fact that deportation must be forced in order to constitute a crime against humanity (see Prosecutor v. Kristic, IT-98-33-T, Trial Judgment, 2 August 2001, para. 528; Prosecutor v. Krnojelac, IT97-25-T, Trial Judgment, 15 March 2002, para. 475; Article 7 (2) (d) ICC). Therefore, if an individual or group flees of his or her own genuine volition, this cannot be deemed to be forced displacement (Jean Pictet, Commentary on Geneva Convention IV (ICRC, Geneva, 1960) p.279).

63. In Allegation No. 5 (in paragraph No.9 of the Formal Charge) and paragraph 8.6, the Prosecution describes that on the 1 June 1971 Emadadul Huq Hira and family left the family home to move elsewhere and that “later with the help of Kamaruzzaman, Pakistani army settled camp at the residence of Emdadul Huq Hira”.

64. It is respectfully submitted that the Prosecution has failed to establish that the alleged victim was forced to flee his home as a direct result of the Accused-Petitioner’s alleged conduct. It may be that Emadadul Huq Hira and family left the family home as a result of the 1971 conflict but this would have been by their own genuine volition so as not to amount to deportation as defined in international customary law.

65. In Allegation No. 6 (in paragraph No.9 of the Formal Charge) the Prosecution seek to charge the Accused-Petitioner with direct participation in the commission of torture as a crime against humanity pursuant to section 3 (2) IC(T)A. In the absence of any contextual elements in the Act itself, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment can be of assistance (hereinafter: Torture Convention). Article 1 of the Torture Convention defines torture as:  “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions”.

66. It is therefore submitted that the definition of torture in international customary law includes a purpose requirement. However, in Allegation No. 6 the Prosecution has failed to establish that the alleged acts of torture were made in pursuant of any purpose including inter alia, to obtain confession, information or punishment. 

67. Under section 3 (2) (a) IC(T)A, the crime of persecution is described as a crime of discrimination, which requires an identifiable and targeted group based upon “political, racial, ethnic or religious grounds”. This is based on Article 6 (c) of the Charter of the International Military Tribunal which includes persecution as a crime against humanity on “political, racial or religious grounds”. This is also established in the ICC’s Elements of Crimes, Crimes Against Humanity, Article 7 1 (h) paras 2 & 3:

“2. The perpetrator targeted such person or persons by reason of identity of a group or collectively or targeted the group or collectivity as such. 3. such targeting was based on political, racial, national, ethnic, cultural, religious, gender as defined in article 7, paragraph 3, of the Statute, or other grounds that are universally recognize as impermissible under international law”.

68. In Allegation No.8 the Prosecution seeks to charge the Accused-Petitioner with persecution as a crime against humanity. However, it is respectfully submitted that the Prosecution has failed to establish on which discriminatory basis the alleged victim, Emdadul Huq Hira was targeted.

69. For the reasons abovementioned, it is respectfully submitted that Allegation Nos. 2, 3, 4, 5, 6 and 8 are not framed in the current form as they do not clarify the necessary parameters for the commission of offences amounting to genocide or crimes against humanity.

70. That moreover, the amendments made by the International Crimes (Tribunals) (Amendment) Act, 2009 to section 3(1) of the IC(T)A have not been given retrospective effect. As such the amendments are only effective and in force from the date of promulgation of the International Crimes (Tribunals) (Amendment) Act, 2009 (i.e. 14 July 2009). As such the amended provisions of the IC(T)A do not apply to the Petitioner.

 After the reading out was completed, Justice Nizamul Haq then set 10 April 2012 for further defence arguments.  The court then moved onto the case of Quader Molla (see this page).

19 Mar 2012: Kamruzzaman charging 3

Justice AKM Zaheer was not present during this hearing

Advocate Zead Al Malum, prosecutor, starting the hearing by saying, My Lord, I would like to draw your kind attention to the report of Daily Sangram. It has published a report titled ‘Again the Prosecution has failed to produce witness against Mawlana Sayedee.’ My Lord, is it not reporting from the negative corner of view?

Justice Nizamul Haq: We’re so tired to call up the reporters on the same issues. How many times we could call up on the same matters? We would not like to hear the same complaints again and again from both of the sides. Mr. Razzak (lawyer for the defence) yesterday you brought up an issue about another newspaper. But right now what should we do.

The Journalists must be very careful about these types of matters. We would like to have your cooperation from every aspect.

Barrister Abdur Razzak: My Lord, we would like to argue on the matter of Professor Golam Azam on another date

Justice Nizamul Haq: Okay the date is fixed on 25th March, 2012 . And as, Mr. AKM Zaheer is not present today, so it would be better to hear the matter in his presence on another day. So, let the date be fixed on 25th March, 2012.

Barrister Abdur Razzak: My Lord, we have another application about the matter of modification of the provision to allow home cooked food to Mr. Golam Azam.

Justice Nizamul Haq: We will hear the matter on the same day.

Advocate Tajul Islam: My Lord, I would like to say something about the media report which has been raised by the Prosecution team. My Lord, whatever they are expecting is not reasonable, because it will frustrate the principle of the freedom of press.

Advocate Saiful Islam, a prosecutor, then continued to read out the charge framing application relating to Mr. Md. Quamaruzzaman (carrying on from the previous day)

8.13 Superior status of the accused 

In measuring the responsibility of crime it is an established principle that the responsibility of the crimes committed by the subordinate workers will go directly to the superior personalities. This established idea is included in the 4(2) section of International Crimes (Tribunals) Act, 1973. According to this section: ‘Any commander or superior officer who orders, permits, acquiesces or participates in the commission of any of the crimes specified in the 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 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.’

The above section is applicable to any civilian or military commander and superior officer.

8.14 In the light of proofs and events found in the investigation the accused Kamarujjaman’s superior status and liability under section 4(2) of the International Crimes (Tribunals) Act, 1973 for crimes committed under section 3(2) of the International Crimes (Tribunals) Act, 1973 are proved clearly.

8.15 The accused Kamarujjaman was the chairman of Mymensingh Islami Chaatro Shongho and an inhabitant of Sherpur. As the chief organizer, on 16th May, 1971 he provided a short military training for 47 workers at Sherpur( Mymensingh District). The training span was 7 to 12 days. The skills of using automatic weapons, dismantling and moving weapons from one place to another, disabling mines and explosives, receiving wireless message were developed in this training. In the practical field the under mentioned weapons were provided to Al Badr- Barabor gun, 303 rifle, light mortar gun, anti aircraft gun, hand grenade, mine and revolver. The association of Al Badrs was mentioned in the note of Major Gen. Rao Forman Ali Khan, the adviser to the governor general. Just after the formation of Rajakar and Al Badr force, camp was established at Ahmed nogor of Jhinaigati, Sherpur.

Brutal mass killings were committed at Jhaugora, Shurzadi of Sherpur, Kakorkandi, Shohagpur and Jogotpur village of Nolitabari area. Relation of Islami Chhatro Shongho with Al Badr force in the report of the Daily Shongram, published on 12th September, 1971 and the leaders of Islami Chhatro Shongho were told to form Al Badr force.

At page 5 column 6 of the Daily Shongram dated 16.08.1971 it is mentioned, “Last Saturday a procession and symposium were arranged at the local Muslim Institute of Momenshahi by Al Badr force commemorating the 25th Azadi Day. Mr. Kamarujjaman, chief organizer of Al Badr force presided over the symposium”. From the report of that news paper it is proved that the accused Muhammad Kamarujjaman is a high ranking organizer of Al Badr force who had the ability to plot conspiracy to agitate people to take strategic plan and to apply the strategic plans. Since, the accused Kamarujjaman is the chief organizer of Al Badr and in the context of determining the liabilities of activities performed by the workers of different statuses of the organization it is an established principle that the liabilities of the activities performed by the subordinates will go directly to the superior officer. Since the accused Kamarujjaman is the chief organizer of Al Badr force, as he had made plans to commit crimes being ordered by the Parent organization Jamaat E Islami and other associative forces like Rajakar force and Islami Chhatro Shongho and as he had taken all steps to apply all the orders and decisions and he had played important role to commit crimes that are defined under the section 4(1) and 4(2) of International Crimes (Tribunal) Act, 1973, the section is applicable to civilian or military commander and superior officer.

8.16 On 29th June 1971 at about 11 pm Martyr Bodiujjaman son of Md. Fojlul Huq inhabitant of Kalinogor village under Nalitabari police station of Sherpur district was arrested by a team of Al Badr whose leader was Kamarujjaman from the residence of Ahammod member of Ramnogor village under Jhinaigati police station and was taken to Ahammod nogor camp and there they tortured him all night and the next day they shot him and killed him on the street. They dragged the body and threw it in the water from the wooden bridge. Muhammod Kamarujjaman as a leader of Al Badr force used to go to the camp by military jeep and deliberately killed many people in this area.

8.17.1 The accused Kamarujjaman was the chairman of Mymensingh Islami Chaatro Shongho and an inhabitant of Sherpur. As the chief organizer, on 16th May, 1971 he provided a short military training for 47 workers at Sherpur (Mymensingh District). The training span was 7 to 12 days. The skills of using automatic weapons, dismantling and moving weapons from one place to another, disabling mines and explosives, receiving wireless message were developed in this training. In the practical field the under mentioned weapons were provided to Al Badr- Barabor gun, 303 rifle, light mortar gun, anti aircraft gun, hand grenade, mine and revolver. The association of Al Badrs was mentioned in the note of Major Gen. Rao Forman Ali Khan, the adviser to the governor general. Just after the formation of Rajakar and Al Badr force, camp was established at Ahmed nogor of Jhinaigati, Sherpur. (Source: Relation of Islami Chhatro Shongho with Al Badr force in the report of the Daily Shongram, published on 12th September, 1971 and the leaders of Islami Chhatro Shongho were told to form Al Badr force.)

At page 5 column 6 of the Daily Shongram dated 16.08.1971 it is mentioned, “Last Saturday a procession and symposium were arranged at the local Muslim Institute of Momenshahi by Al Badr force commemorating the 25th Azadi Day. Mr. Kamarujjaman, chief organizer of Al Badr force presided over the symposium”. From the report of that news paper it is proved that the accused Muhammad Kamarujjaman is a high ranking organizer of Al Badr force who had the ability to plot conspiracy to agitate people to take strategic plan and to apply the strategic plans. Since, the accused Kamarujjaman is the chief organizer of Al Badr and in the context of determining the liabilities of activities performed by the workers of different statuses of the organization it is an established principle that the liabilities of the activities performed by the subordinates will go directly to the superior officer. Since the accused Kamarujjaman is the chief organizer of Al Badr force, as he had made plans to commit crimes being ordered by the Parent organization Jamaat E Islami and other associative forces like Rajakar force and Islami Chhatro Shongho and as he had taken all steps to apply all the orders and decisions and he had played important role to commit crimes that are defined under the section 4(1) and 4(2) of International Crimes (Tribunal) Act, 1973, the section is applicable to civilian or military commander and superior officer.

8.17.2 On 29th June 1971 at about 11 pm Martyr Bodiujjaman son of Md. Fojlul Huq inhabitant of Kalinogor village under Nalitabari police station of Sherpur district was arrested by a team of Al Badr whose leader was Kamarujjaman from the residence of Ahammod member of Ramnogor village under Jhinaigati police station and was taken to Ahammod nogor camp and there they tortured him all night and the next day they shot him and killed him on the street. They dragged the body and threw it in the water from the wooden bridge. Muhammod Kamarujjaman as a leader of Al Badr force used to go to the camp by military jeep and deliberately killed many people in this area.

8.17.3 The anti liberation activities of Kamarujjaman during the liberation war have been known from the historical books on the liberation war and from the tortured people. On 22nd April, 1971 as the chairman of then Islami Chhatro Shongho of Mymensingh district Kamarujjaman first organized Al Badr with some loyal and selected members of Islami Chhatro Shongho of Ashek Mahmud College as the killing squad of Jammat E Islami. Kamarujjaman was the main organizer of this squad.

9. Specific Allegations against the accused-

Allegation no-1: Conspiracy to commit genocide. Refers to paragraphs 6, 7, 8.1- 8.17.
Accused Muhammad Kamarujjaman: Events described in Paragraph 8.8; 8.9; 8.13; 8.14; 8.15; 8.17.1; 8.17.2; 8.17.3 under the sections 3(2) (a) (g) (h) and 4(1) 4(2) of International Crimes (Tribunal) Act, 1973. The accused is liable to commit genocide by giving inciting, revengeful, hateful speech to eradicate the populace of a specific ethnicity by mass killing at the procession and symposium Momenshahi commemorating the 25th Azadi day of Pakistan. For this kind of attitude, the accused is personally liable by the section 4(1). The accused has committed crime which is worthy of the highest punishment by the section 20 of International Crimes (Tribunal) Act, 1973. 

Allegation no-2: Genocide. Refers to paragraphs between 8.1-8.17 above
Accused Muhammad Kamarujjaman: Events described in Paragraphs 8.1; 8.2; 8.3; 8.5; 8.7; 8.15 under the sections 3(2)(c)(iii); 3(2)(g)(h) and 4(2) of International Crimes (Tribunal) Act, 1972 The accused was the chairman of Mymensingh district Islami Chhatro Shongho on 1971 since Al Badr is a paramilitary force whose chief organizer was the accused then he has the superior/commander status. Since, the accused is a high ranking commander he is liable for the crimes committed by all his subordinate workers under the section 4(1);4(2) and for committing genocide by inflicting serious physical injuries, taking preparation for genocide, organizing the killing squad of Al Badr force and recruiting and providing military training to the workers of Islami Chhatro Shongho.
In paragraph 8.7 he is liable for committing genocide by killing males and by raping females. The accused has committed crime which is worthy of the highest punishment by the section 20 of International Crimes (Tribunal) Act, 1973. 

Allegation no-3: Crime Against Humanity: Murder. Refers to paras 8.1-8.17
Events described in paragraphs 8.4; 8.7; 8.10; 8.12; under sections 3(2)(a)(h) of the International Crimes (Tribunal) Act, 1973. The accused is liable to genocide by killing unarmed pro liberation people deliberately on the basis of religion, political party and ethnicity. The accused has committed crime which is worthy of the highest punishment by the section 20 of International Crimes (Tribunal) Act, 1973. 

Allegation no-4: Crime Against Humanity: Extermination. Refers to paras 8.1-8.17
Events described at the paragraph 8.9 under the section 3(2) of International Crimes (Tribunal) Act, 1973. The accused is liable for committing crime against humanity by committing extermination by giving inciting and hateful speech at the procession and the symposium, creating fear among the mass people and by creating propaganda among the party workers to eliminate pro liberation Bengali populace. The accused has committed crime which is worthy of the highest punishment by the section 20 of International Crimes (Tribunal) Act, 1973. 

Allegation no-5: Crime Against Humanity: Deportation. Refers to paras 8.1-8.17
Event described at the paragraph 8.6 under the Section 3(2)(a) of International Crimes (Tribunal) Act, 1973. The accused Muhammad Kamarujjaman is liable for committing crime against humanity by removing people from their home and by deporting them as many in habitants of Gridha Narayanpur village of Sherpur town under Jamalpur district including Emdadul Huq Hira Mia were compelled to leave their home due to the extensive torture of Kamarujjaman and his Al Badr troop. The accused has committed crime which is worthy of the highest punishment by the section 20 of International Crimes (Tribunal) Act, 1973. 

Allegation no-6: Crime against humanity: Torture. Refers to paras 8.1-8.17
Event described at the paragraphs 8.4; 8.5; 8.8; 8.11; 8.12; under the sections 3(2)(a)(g)(h) of the International Crimes (Tribunal) Act, 1973. The accused and his Al Badr force had arrested Martyr Bodiujjaman son of Md. Fojlul Huq inhabitant of Kalinogor village under Nalitabari police station of Sherpur district on 29th June 1971 at about 11 pm from the residence of Ahammod member of Ramnogor village under Jhinaigati police station and had taken to Ahammod nogor camp and there they tortured him all night
The accused had arrested Syed Abdul Hannan, lecturer of Islamic history and Culture of Sherpur College and made him almost naked, made him bald, harnessed him, rubbed him with ashes and dragged him along the streets of Sherpur town while they were whipping him brutally. He is liable for committing crime against humanity by torturing and persecuting. The accused has committed crime which is worthy of the highest punishment by the section 20 of International Crimes (Tribunal) Act, 1973. 

Allegation no-7: Crime Against Humanity: Rape. Refers to para 8.1-8.17
Event described at the paragraph 8.7 under the Section 3(2)(a)(h) International Crimes (Tribunal) Act, 1973. The accused is liable for crime against humanity by killing males and raping females of Shohagpur village on 25th July, 1971. The accused has committed crime which is worthy of the capital punishment by the section 20 of International Crimes (Tribunal) Act, 1973. 

Allegation no-8: Crime Against Humanity: Persecution, Refers to paras 8.1-8.17
Event described at the paragraph 8.6 under the section 3(2)(a)(g)(h) of International Crimes (Tribunal) Act, 1973. The accused with his Al Badr men looted and burned the residence of Emdadul Huq Hira Mia, inhabitant of Gridha Narayanpur village of Sherpur town under Jamalpur district and Pakistani army settled their camp in that house and by capturing innocent unarmed and common people of that area and after killing burying them in mass grave the accused is liable for committing crime against humanity. The accused has committed the crime which is worthy of the highest punishment by the section 20 of International Crimes (Tribunal) Act, 1973. 

Allegation no-9: Liability for all Crimes. Refers to para 8.1-8.17.
Events described in the paragraphs 8.1; 8.2; 8.3; 8.9; 8.10; 8.11;8.13; 8.14; 8.15 under the section 4(1); 4(2) of International Crimes (Tribunal) Act, 1973

The names of chiefs and central commanders of Rajakar, Al Badr and Al Shams have been collected. They are
1. Motiur Rahman Nijami : President, Pakistan Islami Chhatra Shongho
2. Ali Ahsan Muhammad Mujahid :President, East Pakistan Islami Chhatra Shongho
3. Mir Kashem Ali : Central leader of Islami Chhatra Shongho
4. Md. Yunus : Chief of Rajakar force
5. Muhammad Kamarujjaman : Chief organizer of Al Badr force
6. Ashraf Hosen :Founder of Al Badr force and chief of Mymensingh
7. Md. Shamsul Huq : Chief of city Badr force
8. Mostofa Shaokot Emran : Commander of Dhaka A l Badr force
9. Ashrafujjaman Khan : Chief of Dhaka city Al Badr force and chief Executor of intellectual killing
10. Chowdhury Moeen Udiin : Operation in charge of intellectual killing
11. Shardar Abdus Salam : Chief of Dhaka district

As the chairman of then Islami Chhatro Shongho of Mymensingh district Kamarujjaman first organized Al Badr with some loyal and selected members of Islami Chhatro Shongho of Ashek Mahmud College. Under the leadership of the accused Muhammad Kamarujjaman within few months all the workers of Islami Chhatra Shongho of Mymensingh district were included in the Al Badr force and sent to different regions after short military training. In this way, while having the superior status the accused Muhammad Kamarujjaman has joint and individual criminal responsibility of the accused under section 4(10 of the International Crimes (Tribunal) Act, 1973. Not only the accused is liable for his own crimes but he is responsible for the crimes of all his subordinates and the crimes of all organizations and persons which were within the influence of his organizational superstructure. The organizations under that superstructure are: Jamaat E Islami, Islami Chhatro Shongho, Peace Committee, Rajakar force, Al Badr force, Al Shams force, Mujahid force etc. Therefore the nature of the liability of the crimes of the accused in the light of the section 4(1) of the International Crimes (Tribunal) Act, 1973 is joint and individual criminal responsibility. For example, name of some persons are mentioned below who were in the circle of the accused’ leadership and the accused is liable himself jointly and individually for their crimes.
The accused Muhammad Kamarujjaman is responsible for plotting conspiracy, inciting people, planning and ordering for committing crimes and being involved fully in committing crimes in different areas of Mymensingh, Jamalpur, Netrokona, Kishorgonj, Sherpur by his loyal Al Badr force and as he was fully involved in these activities he is directly or indirectly responsible for all the crimes of his subordinate workers.

The accused has committed the crime which is worthy of the highest punishment by the section 20 of International Crimes (Tribunal) Act, 1973.

Joint and Individual criminal responsibility of the accused 

As the chairman of then Islami Chhatro Shongho of Mymensingh district Kamarujjaman first organized Al Badr with some loyal and selected members of Islami Chhatro Shongho of Ashek Mahmud College. Under the leadership of the accused Muhammad Kamarujjaman within few months all the workers of Islami Chhatra Shongho of Mymensingh district were included in the Al Badr force and sent to different regions after short military training. In this way, while having the superior status the accused Muhammad Kamarujjaman has joint and individual criminal responsibility of the accused under section 4(10 of the International Crimes (Tribunal) Act, 1973. Not only the accused is liable for his own crimes but he is responsible for the crimes of all his subordinates and the crimes of all organizations and persons which were within the influence of his organizational superstructure. The organizations under that superstructure are: Jamaat E Islami, Islami Chhatro Shongho, Peace Committee, Rajakar force, Al Badr force, Al Shams force, Mujahid force etc.

Therefore the nature of the liability of the crimes of the accused in the light of the section 4(1) of the International Crimes (Tribunal) Act, 1973 is joint and individual criminal responsibility. For example, name of some persons are mentioned below who were in the circle of the accused’ leadership and the accused is liable himself jointly and individually for their crimes.

The accused Muhammad Kamarujjaman is responsible for plotting conspiracy, inciting people, planning and ordering for committing crimes and being involved fully in committing crimes in different areas of Mymensingh, Jamalpur, Netrokona, Kishorgonj, Sherpur by his loyal Al Badr force and as he was fully involved in these activities he is directly or indirectly responsible for all the crimes of his subordinate workers.

My Lord; so Mr. Quamaruzzaman is liable of the superior responsibility which falls under section- 4(2). The accused person has used his superior status and thus committed crimes under section- 3(2) of the ICT Act-1973 and thus liable for conspiracy. When his superior status was prevailing - he has done several categories of crimes under section- 3(2) of ICTAct-1973.

The tribunal has the jurisdiction to take the judicial notice of these crimes.

So, My Lord, our humble prayers are as follows before the tribunal- to take Judicial Notice of the following matters under section-19 (3) of ICT Act-1973.
(a) To accept the formal charges and take the cognizance of offences committed by Mr. Quamaruzzaman under section-3(2) of ICT Act-1973.
(b) To take the cognizance of the matter of Superior Responsibility of the following person.
(c) To take the Judicial Notice of the offences under section- 19(3) of the ICT Act-1973.
(d) To take the judicial notices of the offences committed by the auxiliary forces under section- 19 (3) of the ICT Act-1973.
(e) To punish the perpetrators under section-20 of the ICT Act-1973.

'We would like to draw the kind attention of the Tribunal to these following matters' he said finally

Adjourned until the afternoon

Prosecutor Saiful Islam then made some oral arguments relating to the charge. He said that there are some vital points to justify the Formal charge.

Basic points are: This case is not a normal criminal case but related to our Liberation war. Whole nation is looking for its fair trial. We know that people of East Pakistan was deprived, at that time Pakistan tried to recognize Urdu as state Language. From the national budget analysis of that time, it is very much clear how the people of east-Pakistan had been deprived. However, our leader Bangbandhu Sheikh Mujibar Rahman raised his voice against West Pakistan.

The leader of Jamaat-i-islam of East Pakistan came under order of the Pakistan military and to execute various heinous offences to make successful all the activities of the Pakistan military. They established very good relationship with the Pakistan Military.

Each force was formed by Ghulam Azam leader of Jamaat-i-isalm and others members of Jamaat-i-islam with the direction of the West Pakistan Government. They formed peace committee at Thana and district level and started to identify the people who are against the West Pakistan. After that they were equipped with arms. Subsequently, for observing all of their purposes, other forces were also formed. Later they were trained and given arms to fight. Auxiliary force was supervised by Military Government. Al badr and Al shams these are the associated force of Razakaar force. They were also received training to fight. So they had a connection with the military force and did similar types of offences.

Accused Md. Quamaruzzaman was the pioneer organizer of Albadr. He brilliantly organised various operation which gave the Pakistan Authority enough confidence to realize the matter that the Auxiliary force observed their duty with due respect to West Pakistan. As Mr.Quamaruzaman was the pioneer organizer of Albadr so he was involved in those atrocities. He was the master planner as well in Mymensingh to assist the Pakistani Military. He used his capacity to organize his party to perpetrate crime during the Liberation War.

He is mainly charged with those activities which were committed by Albadr at Mymensingh during the war. Therefore he has been charged for his command responsibility as he was the chief of Mymensingh Chhtra Sangha Unit. Albadr was consisted of members of Islamic Chhtra Sangha.

He supervised those stations which were occupied as Razakaar office and military office. He supervised by giving instruction, plans and programmes. Therefore he was the part and parcel of the Albadr. He was charged for collective responsibility and charged with planning, conspiracy, incitement.

Therefore, he committed offence under section 3(2), (a),(c),(g),(h) and also attracts the section 4(1) and 4(2).

Today the Bengali nation would not be here, if Bangabandhu Sheikh Mujibar Rahman did not take the initiative and was not so adamant. This case is not a normal case; it is fully relate to the sentiment of the Bengali people which can not be avoided.

It is very clear that the Act is promulgated for prosecution and punishment of the offenders. As prima facie it is proved that accused has committed the offence, so he should be Prosecuted and punished.

Justice Nassim: If the case is proved then he will be punished.

Saiful Islam: Yes, my lord. Basically accused had an extra-ordinary capacity; he used his capacity to organize people against the East Pakistan. He will be liable as he hold the superior position at that time. He was the leader of Albadr, he trained them and supervised them. As he was in superior position, so he attracts the sec 4(2) of the ICT Act-1973.

Justice Fazle Kabir: Offence under section 3 and 4 should be proved in different circumstances. And in case of direct charges also such as charge against humanity, murder and rape you did not refer all particulars of those people who were killed. You have said in one charge that 44 persons had been died from 120 people but did not mention who are they? What is their father name? Where did they live? You should submit the particulars of those persons because there could be several people by the same name at one village.

Saiful Islam: For being proved this case as prima facie case, we have supplied enough documents for the satisfaction of the Tribunal.

Then Argument of the prosecution was completed.

Ehsan Siddiq: We need to take 3 weeks for our preparation.

Justice Nassim: Formal charge has been submitted at December, 3 months has been passed that formal charge is given. So you must have to be prepared.

Justice Nassim adjourned the court by fixing the date on 25th March for Ghulam Azam and Quamaruzzam matter.