22 Oct 2012: Nizami 1st witness cross exam day 6

Following the show cause order against Tajul Islam, the cross Examination of Misbahur Rahman Chowdhury then continued, (following on from this hearing)

Mizanul Islam: How many training camps of Al Badar were there during the liberation war?

Witness: I don’t know.

Defence: When and in which district the Al-Badar camp has first been formed?

Witness: I don’t know.

Defence: Was there any Pakistan Officer who was in duty to train the members of Al Badar?

Witness: I don’t know it specifically but Pakistan Armies have trained them.

Defence: Have you collected any certificates of any trainees of Al-Badar who has got the training?

Witness: No.

Defence: How many Al-Badars have been interviewed by you during your research?

Witness: More than one.

Defence: How many rape victims have been interviewed during your research?

Witness: No one.

Defence: How many direct witnesses of Genocide have been interviewed during your research?

Witness: None but several researchers on this topic have been interviewed.

Defence: How many mass graves have been visited by you?

Witness: 3 or 4. I don’t know when I have first gone to visit. After coming back from London in 1976 I have first gone to Rayerbazar killing ground.

Defence: What is the distance of Rayerbazar killing ground from your house at Mitali Road?

Witness: The distance is less than 1 KM. I have stayed at that house of Mitali road since 15 or 16 days before 16th December, 1971 till 15 or 16 days afterwards.

Defence: How has the incident of Rayerbazar mass grave has been came to your attention?

Witness: I used to read newspapers at that time. I have got to know about that on that time.

Defence: Have you investigated anything about Rayerbazar before your departure towards London?

Witness: No. But from the newspapers I have came to know that the Al Badars have committed this occurrence.

Defence: Have you given any list of Al-Badars to the investigation officer about who were involved with the Rayerbazar incident?

Witness: No.

Defence: Did your father make any obstacle in your taking part in liberation war?

Witness: After getting the letter of Sirajul Islam Motlib on August, 1971 when I was thinking about taking part on liberation war, then at that time my father has sent me to London.

Defence: Did you get any copy of the decision of Islamia Chatro Sangha where it has been stated that- everyone of the Islamic Chatro Sangha is asked to join the Al Badar?

Witness: No, I got to know about that from the letter.

Defence: Have you got any letter before or after 1971 which has been written by Motiur Rahman Nizami where there was a direction to join the Al-Badar?

Witness: No.

Defence: Who has joined the Islamic Chatro Sangha?

Witness: I have watched 80 or 85 member leaders of Islamic Chatro Sangha at the meeting of Islamic Chatro Sangha in 1970 all of whom have joined Al Badar afterwards. I don’t know nothing about the other members.

Defence: Have you tried to visit the other members except those 80 or 85 leaders for the purpose of your research?

Witness: Yes. I found two or one of them.

Defence: at the meeting of Islamic Chatro Sangha in 1970 at Sylhet how many members have taken part from Moulovibazar?

Witness: 10 to 15 people.

[Then the defence counsel has started asking contradiction with the statements of the witness from the examination in chief and the stenographer has started copying and pasting the quoted lines from the previous record.]

Defence: To become a political hero you have made the letter.

Witness: Not true.

Defence: Moulovibazar has never been selected as the organizational district of Islamic Chatro Sangha.

Witness: Not true.

Defence: You are a political beneficiary and giving false statement against the petitioner.

Witness: Not true.

Defence: You used to change your political motive and belief for the sake of getting benefits.

Witness: Not true.

Defence: Okay that is all about my cross examination.

Chairman: Okay. Next day for this case is 11-11-2012.

21 Jun 2012: Nizami transfer recusal application

Following Nizami's review application argument, the tribunal then moved onto dealing with the defense application for tribunal chairman recusal/transfer of case to second tribunal in relation to the case of Motiur Rahman Nizami. The application is set out below - and its arguments were very similar to the earlier one relating to Golam Azam.

1. That this application has been filed before the Hon’ble Tribunal pursuant to Ordinance No. 04, 2012 “An Ordinance for Amendment of the International Crimes (Tribunals) Act 1973” providing for the transfer of cases between International Crimes Tribunal-1 and International Crimes Tribunal-2, under section 11A of the International Crimes (Tribunal) Act 1973 read with Rule 46A of the International Crimes Tribunal Rules of Procedure 2010 and under section 6(2A) of the International Crimes (Tribunal) Act 1973 read with Rule 46A of the International Crimes Tribunal Rules of Procedure 2010.

2. Specifically the Ordinance provides for the insertion of Section 11(A) into the International Crimes (Tribunals) Act, 1973 (Act No. XIX of 1973), which at ll(A)(1) provides that:  “At any stage of a case, a Tribunal may, on its own motion or on the application of the Chief Prosecutor, by an order in writing, transfer the case to another Tribunal, whenever it considers such transfer is just and convenient for proper dispensation of justice.. ”

3. That the Accused-Petitioner prays to the Hon’ble Tribunal to avail itself of the opportunity in the abovementioned provisions to transfer his case as the only possible means to ensure proper dispensation of justice and to avoid the need for recusal given the Hon’ble Chairman’s previous role as a member of the Secretariat of the People’s Inquiry Commission.

4. That, in the alternative, this application has been filed before this Hon’ble Tribunal pursuant to the Supreme Judicial Council Code of Conduct and the oath of office provided for under Article 148 of the Constitution and prescribed in the Third Schedule, seeking the recusal of Mr. Justice Md. Nizamul Haque Nasim and in the alternative the transfer of the Accused-Petitioner to ICT-2.

5. That Article 96(4)(a) of the Bangladesh Constitution (hereinafter the Constitution) provides for a Code of Conduct to be prescribed by the Supreme Judicial Council and which is to be observed by judges. This was most recently published in 7 May 2000 (hereinafter: Code of Conduct).

6. Pursuant to section 1 of the Code of Conduct: “A judge should uphold the integrity and independence of the judiciary. An independentjudiciary is indispensable to the justice system in Bangladesh. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.”

7. Furthermore, section 2 of the Code of Conduct provides that: “(2) A judge should avoid impropriety and the appearance of impropriety in all activities. (2A). A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

8. Under section 6(A) of the Code of Conduct “The judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned.”

9. Further, under section 6(D)(IV) of the Code of Conduct a judge should disqualify himself if he “is likely to be a material witness in the proceeding”.

10. The Code of Conduct stipulates that any act: “which erodes the credibility and independence has to be avoided. The Code of Conduct is only restatement of values of judicial life and is not meant to be exhaustive but illustrative of what is expected of a judge.”

11. Article 148 of the Constitution also provides for an oath to be taken by members of the Judiciary. This is prescribed in the Third Schedule of the Constitution and provides that a judge will solemnly swear or affirm that he will:  “faithfully discharge the duties of [his] office according to law: That [he] will bear true faith and allegiance to Bangladesh: That [he] will preserve, protect and defend the Constitution and the laws of Bangladesh: And that [he] will do right to all manner of people according to law, without fear of favour, affection or ill-will.”
12. Pursuant to the preamble of the Code of Conduct, in taking this oath a judge is subject to the provisions of the Code of Conduct including those explicitly referred to in this application.

13. The right to an independent and impartial judiciary prescribed in the Code of Conduct is also a basic obligation to adhere to under international law. Article 10 Universal Declaration of Human Rights (UDHR) provides:  “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”

14. This is reiterated under Article 14 (1) of the International Covenant on Civil and Political Rights (ICCPR), which provides that all persons are: “entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”. The UN Human Rights Committee which is tasked with upholding the provisions of the ICCPR has held that:  “The impartiality of the court and the publicity of proceedings are important aspects of the right to a fair trial within the meaning of Article 14 (1). ‘Impartiality’ of the court implies that judges must not harbor preconceptions about the matter put before them, and that they must not act I ways that promote the interests of one of the parties. Where the grounds for disqualification of a judge are laid down by law, it is incumbent upon the court to consider ex officio these grounds and to replace members of the court falling under the disqualification criteria. A trial flawed by the participation of a judge who, under domestic statute, should have been disqualified cannot normally be considered to be fair or impartial within the meaning of Article 14.” (Karttunen v. Finland [387/89])

15. This fundamental right to an independent and impartial Judge is further upheld in Article 40(1) of the Rome Statute for the International Criminal Court (ICC), which provides that “[t]he judges shall be independent in the performance of their functions”. The disqualification of a judge is outlined in Article 41(2)(a) ICC:  “A judge shall not participate in any case in which his or her impartiality might reasonably be doubted on any ground. A judge shall be disqualified from a case in accordance with this paragraph if, inter alia, that judge has previously been involved in any capacity in that case before the Court or in a related criminal case at the national level involving the person being investigated or prosecuted.”

16. That Bangladesh is a state party to the UDHR, ICCPR and ICC and must therefore adhere to its international obligations.

17. That Mr. Justice Nizamul Haque Nasim was appointed as Chairman of the International Crimes Tribunal by Notification published by the Ministry of Law Justice and Parliamentary Affairs in the Bangladesh Gazette on 25.03.2010.

r. Justice Md. Nizamul Haque Nasim was previously a member of the Secretariat of the People’s Inquiry Commission that investigated allegations of war crimes made against the Accused-Petitioner. The function of the Secretariat was to assist the People’s Inquiry Commission in its investigation against the Accused-Petitioner. The Ghatak Dalal Nirmul Committee published the results of the People’s Inquiry Commission in 1995 (hereinafter: Ghatak Dalal Nirmul Report).

19. That the Ghatak Dalal Nirmul Committee Report has been disclosed as a Prosecution Document to be relied upon by the Prosecution in its case against Allama Delawar Hossain Sayedee. The Ghatak Dalal Nirmul Committee Report appears at pages 176 to 187 of volume 3 of the Prosecution Documents.

20. Mr. Justice Md. Nizamul Haque Nasim’s involvement in the Secretariat of the People’s Inquiry Commission raises serious concerns of appearance of bias against the Accused-Petitioner.

21. Furthermore, Mr. Justice Md. Nizamul Haque Nasim, as Chairman in proceedings against the Accused-Petitioner, will essentially be ruling upon evidence that he has assisted in preparing.

22. It is respectfully submitted that this is not a matter that the Hon’ble Tribunal need conduct an extensive examination into – there is little doubt that the Chairman was a member of the Secretariat – the question is whether an objective observer would apprehend that there is a legitimate fear that he will lack the required level of impartiality due to such membership. Furthermore, at the hearing in the Ghulam Azam Case on 6th June 2012 it was acknowledged by the Chairman that he had attended a meeting of the Sammilita Ainjibi Samannay Parishad, a lawyers’ platform, on 10 April 1992, in which it was demanded that the Government of Bangladesh take legal action to execute the verdict of the Peoples’ Court. In this regard it is respectfully submitted that it is not important whether the Chairman had assumed an active role in the meeting; it is sufficient that his mere presence at the meeting, a matter which is not in dispute, is such that an objective observer would apprehend that there is a legitimate fear that he will lack the required level of impartiality and would seriously impact on the integrity of the proceedings and the integrity of the Tribunal as a judicial institution of Bangladesh.

23. In Prosecutor v. Issa Hassan Sesay, Case No. SCSL-2004-15-AR 15, the Special Court for Sierra Leone Appeals Chamber referred to the two authorities cited above in determining whether Justice Geoffrey Roberston QC should be properly disqualified for commenting on the nature of the conflict in a book. The Appeals Chamber concluded, as per Justice King, at para. 15:

“It is irrelevant for the purposes of this Ruling whether or not the passages hereinbefore referred to are true or not. The learned Justice is entitled to his opinion. That is one of his fundamental human rights. The crucial and decisive question is whether an independent bystander so to speak, or the reasonable man, reading those passages will have a legitimate reason to fear that Justice Robertson lacks impartiality. In other words, whether one can apprehend bias. I have no doubt that a reasonable man will apprehend bias, let alone an accused person and I so hold.”

24. Justice King, in giving judgment, concluded by referring to R v. Sussex Justices, Ex party McCarthy (1923) 1 KB 256 at p. 259 that “Justice must only be done, but should manifestly be seen to be done.”

25. It is respectfully submitted that the overriding question in the instant case is not that of the Hon’ble Chairman’s integrity, but whether an objective observer would apprehend that there is a legitimate fear that he will lack the required level of impartiality due to his prior role in the Secretariat of the People’s Inquiry Commission.

26. Irrespective of how limited a role the Hon’ble Chairman may have played in the inquiry into war crimes in the 1990s, it is inappropriate for the Prosecution now to seek to rely on the findings of the Commission in a case against the Accused-Petitioner. As a member of the Secretariat of the People’s Inquiry Commission, the body that investigated crimes alleged to have been committed by the Accused-Petitioner, and as an attending member of the Sammilita Ainjibi Samannay Parishad meeting on 10 April 1992, the Hon’ble Chairman has a relationship with one of the parties as set out in Prosecutor v. Issa Hassan Sesay. The Hon’ble Judge clearly falls foul of the objective impartiality test in that an objective observer could only conclude that an appearance of bias is present.

27. It is further submitted that, as reported on 11 April 1992, the Coordination Council of the Bar Associations of Bangladesh issued a statement entitled “Take Legal Action in Relation To The Judgment of the People’s Court”. Amongst the signatories is the Hon’ble Chairman. The statement referred to a resolution in which it was stated:

“The Co-ordination Council of the Bar Associations of Bangladesh in a resolution demanded that the Government be respectful towards the judgment of the People’s Court and take necessary legal action in relation to the same.”

28. This situation renders the inclusion of Mr. Justice Md. Nizamul Haque on the bench in the instant case at odds with the integrity and independence of the International Crimes Tribunal, contrary to the provisions of the Code of Conduct and ultimately precluding justice being done for the Accused-Petitioner, and indeed any person brought before the ICT-1 to which Mr. Justice Md. Nizamul Haque is Chairman.

29. That furthermore, section 11(A)(1) of Act No. XIX of 1973 provides for the transfer of cases when the Hon’ble Tribunal considers it just and convenient for “expeditious disposal” of justice.

30. The Accused-Petitioner’s case has been before the Hon’ble Tribunal since 2nd August 2010 with proceedings set to commence on 1 July 2012, giving the impression, taking into account that two trials are currently ongoing before the same bench, that justice could be disposed of more expeditiously, specifically by transfer of the Accused-Petitioner’s case to Tribunal-2.

31. It is further submitted that the apparent absence of a corresponding right for the Defence to initiate transfer under Section 11(A) should not be read as prohibitive, despite the submisisons of the Prosecution in the Professor Ghulam Azam Case, and that the Accused-Petitioner prays the Hon’ble Tribunal will exercise its right to transfer on the basis of the arguments laid out this application.

32. That to read Section 11(A) as prohibitive would amount to a violation of the principle of equality of arms, according to which parties in legal proceedings must have procedural as well as substantive equality.

33. Article 27 of the Bangladesh Constitution (hereinafter the Constitution) provides that: “All citizens are equal before the law and are entitled to the equal protection of law.”

34. The principle of equality of arms is a basic obligation under international law. It is implicit in Article 7 UDHR which provides that: “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.”

35. This principle is reiterated in Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR) which provides that: “All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”

36. The UN Human Rights Committee tasked with upholding the provisions of the ICCPR held in De Jorge Asensi v. Spain Communication No. 1413/2005, De Jorge Asensi v. Spain that: “Although Article 14 does not explain what is meant by a “fair hearing” in a suit at law, the concept of a fair hearing in the context of article 14, paragraph 1, of the Covenant should be interpreted as requiring certain conditions, such as equality of arms [Communication No. 207/1986, Morael v. France, para. 9.3 ] [the Accused-Petitioner’s emphasis] and absence of arbitrariness, manifest error or denial of justice."[See the Committee’s general comment No. 32, para. 26, (2007) on article 14 of the Covenant, “Right to equality before courts and tribunals and to a fair trial”.]

37. This fundamental principle of equality of arms is also set out in Article 67(1) ICC which provides that: “In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality”.

38. That as before mentioned Bangladesh is a state party to the UDHR, ICCPR and ICC and must adhere to its international obligations thereunder.

39. On 28 November 2011 the Hon’ble Tribunal dismissed a similar petition in the matter of Sayedee v. The Prosecutor. In that matter the Hon’ble Tribunal refused the application partly on the basis that the Act did not provide the right of the parties to seek the recusal of a judge and partly on the basis that the question of bias had not been made out. In this regard it is respectfully submitted that the Accused-Petition seeks to have his case transferred to Tribunal-2 for the avoidance of doubt and any semblance of partiality.

40. In the Sayedee Case the Hon’ble Tribunal left the matter to the good conscience of the Chairman of the Tribunal who refused to recuse himself on the basis that his involvement was minor; this issue is addressed elsewhere in this petition. As regards the manner in which the Hon’ble Tribunal dealt with the matter, it is respectfully submitted that the Hon’ble Tribunal Judges erred in not applying the fundamental principles set out in national and international law. It is respectfully submitted that, notwithstanding the limitations set out under the Act, there exists an inherent duty on the Tribunal to ensure the integrity of the proceedings and integrity of the process. It is incumbent upon the Hon’ble Tribunal Judges to ensure that the process is conducted in accordance with fundamental norms of due process. It is of further note that neither the letter detailing the meeting of the Sammilita Ainjibi Samannay Parishad on 10 April 1992 nor the Chairman’s acceptance of his presence at the meeting was available to the defence at the time of the Sayedee application for recusal.

41. Under international law, the procedure for determining impartiality is highly important. If an accused raises the issue during the proceedings it must be investigated unless it is “devoid of merit”. This requires the court to determine whether, apart from the judge’s personal conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this respect the position is very clear. If there are legitimate reasons to doubt the impartiality then that judge must withdraw from the case. In Piersack v. Belgium (Application No. 8692/79, Judgment of 1 October 1982, paras 30-32) it was held to be a violation where the trial judge had previously been a member of the department who investigated the applicant and who had initiated the prosecution against him. In Piersack the European Court of Human Rights held: “30. Whilst impartiality normally denotes absence of prejudice or bias, its existence or otherwise can, notably under Article 6 § 1 (art. 6-1) of the Convention, be tested in various ways. A distinction can be drawn in this context between a subjective approach, that is endeavouring to ascertain the personal conviction of a given judge in a given case, and an objective approach, that is determining whether he offered guarantees sufficient to exclude any legitimate doubt in this respect. …
However, it is not possible to confine oneself to a purely subjective test. In this area, even appearances may be of a certain importance (see the Delcourt judgment of 17 January 1970, Series A no. 11, p. 17, § 31). As the Belgian Court of Cassation observed in its judgment of 21 February 1979 (see paragraph 17 above), any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw. What is at stake is the confidence which the courts must inspire in the public in a democratic society.”

42. In the alternative, if this request is refused it is respectfully submitted that the Hon’ble Chairman recuses himself from these proceedings. It is respectfully submitted that the integrity of the proceedings and the process must be paramount.

43. It is respectfully submitted that the Hon’ble Tribunal may take into account the established international jurisprudence on the question of objective impartiality in properly addressing the question of whether the Hon’ble Chairman should recuse himself. In Regina v. Bow Street Metropolitan Stipendary Magistrates and others, Ex parte Pinochet Ugarte (No. 2) (House of Lords) 1 AC 119 which held that: “…the fundamental principle that a man may not be a judge in his own cause was not limited to the automatic disqualification of a judge who had a pecuniary interest in the outcome of a case but was equally applicable if the judge’s decision would lead to the promotion of a cause in which he was involved together with one of the parties…that in order to maintain the absolute impartiality of the judiciary there had to be a rule which automatically disqualified a judge who was involved…in promoting the same causes…as was a party to the suit”.

“The court cannot rely on its knowledge of the integrity of the judge concerned to outweigh the appearance of bias to the eye of the bystander. The reference point must remain the reasonable observer. This is consistent with the test laid down under article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms”.

“…I am of the opinion that there could be cases where the interests of the judge in the subject matters of the proceedings arising from his strong commitment to some cause or belief or his association with a person or body involved in the proceedings could shake public confidence in the administration of justice as much as a shareholding (which might be small) in a public company involved in the litigation”.

44. In Prosecutor v. Anto Furundzija, ICTY Appeals Chamber: 21 July 2000: Case No. IT – 95 – 17/1, the ICTY Appeals Chamber held: “The fundamental right of an accused to be tried before an independent and impartial tribunal is generally recognised as being an integral component of the requirement that an accused should have a fair trial.” [para. 177]

“On this basis the Appeals Chamber considers that the following principles should direct it in interpreting and applying the impartiality requirement of the statute:
A. A Judge is not impartial if it is shown that actual bias exists.
B. There is an unacceptable appearance of bias if: (i) a judge is a party to the case, or has a financial or propriety interest in the outcome of a case, or if the Judge’s decision will lead to the promotion of a cause in which he or she is involved, together with one of the parties. Under these circumstances, a Judge’s disqualification from the case is automatic; or (ii) the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.” [para. 189].

45. In the Sayedee decision the issue was raised as to the involvement of the Hon’ble Chairman in the Secretariat of the Commission and that his role was a very minor one. In this regard it must be noted that however minor his role may have been the appearance of partiality is such that he must step down. In this regard due attention must be paid to the remarks of the Hon’ble Prime Minister on the occasion of the United Nations General Assembly 65th Session (2010) in which she stated: “Bangladesh has established an International Crimes Tribunal to try persons responsible for war crimes and crime against humanity, including genocide, arson and rape committed during our war of liberation in 1971, and immediately thereafter. This action is in accord with the rule of law as reflected in the Rome Statute of the International Criminal Court (ICC), which we have ratified and which aims at bringing perpetrators of war crimes, genocide, and crimes against humanity, to justice. I believe that only justice can heal the unforgivable, deadly wrongs of the past.”

46. The Hon’ble Prime Minister clearly expressed the need to maintain the highest standards according to the legal framework of the Rome Statute of the International Criminal Court. In this regard it is not for the Hon’ble Tribunal to select which standards it wishes to adhere and which it chooses to ignore. The Hon’ble Tribunal must apply those standards which ensures that trials are fair and in accordance with Bangladesh’s international obligations.

47. That the Accused-Petitioner humbly prays that the Hon’ble Tribunal will avail itself of the opportunity before commencement of his case, and therefore without prejudice to the trial process, to take advantage of the Ordinance and Amended Act to transfer the Accused-Petitioner’s case to Tribunal-2 under the chairmanship of the Hon’ble Justice A. T. M. Fazle Kabir.

21 Jun 2012: Nizami indictment review application

In the afternoon, following the bail hearing on Sayedee, the tribunal then heard the application for a review of the order of indictment/charge-framing relating to Nizami.

It relates to a review of the order which was issued on 28 May 2012

The written application is set out below:

1. It is recalled that on 9 January 2012 this Tribunal took cognizance of offences under section 3(2), 4(1) and 4(2) of the International Crimes (Tribunal) Act 1973 as amended 2009 (hereinafter: ICTA) against the Accused-Petitioner, stating that the Prosecution had established a prima facie case as required under Rule 29(1) of Tribunal-1 Rules of Procedure (hereinafter: RoP).  

2. Subsequently the Tribunal ordered the Prosecution to serve the relevant papers and documents under Rule 18(1) RoP in its case against the Accused-Petitioner by 15 January 2012 which was complied with by the Prosecution.

3. In response, the Defence filed its Application for Discharge on 11 February 2012. This was followed by submissions made by both parties during the formal charge hearings held on 13.03.12, 14.03.12, 15.03.12, 21.03.12, 15.04.12, 16.04.12 and 03.05.12.

4. On 28 May 2012, the Tribunal issued its Order on the framed charges against the Accused-Petitioner (hereinafter: 28 May 2012 Order). In doing so it framed a total of 16 charges against the Accused-Petitioner. A certified copy of the 28 May 2012 Order was issued on 30 May 2012.

5. It is recalled that pursuant to Rule 26(3) RoP a review of any of the Tribunal’s Orders either by the Tribunal’s own motion or on application of either party including the Order of framing charges is allowed. Pursuant to Rule 26(4) RoP an application for review must be filed within 7 days of the order under review.

6. For the following reasons, it is submitted that the Tribunal erred in its approach in framing the charges against the Accused-Petitioner in its 28 May 2012 Order. For this reason, the Accused-Petitioner prays for a review of the 28 May 2012 Order under Rule 26(3) RoP. This application is made within the specified time limit.

Modes of Liability
7. It is recalled that throughout all the Counts, 1 to 16, the Accused-Petitioner has been charged under section 4(1) and section 4(2) of the Act.

8. In addition to the modes of liability under sections 4(1) and 4(2) of the Act, the Accused-Petitioner has also been charged with “planning”, “commissioning”, “conspiring”, being “complicit” in the commission of crimes under section 3(2)(g) and section 3(2)(h) ICTA under Counts 2, 3, 4, 5, 7 and 15.

9. Equally, in Charges 11, 12, 13 and 14, he is additionally charged with “inciting” the commission of such crimes as specified in section 3(2)(f) ICTA”.

10. It is noted that these modes of liability are not charged in the alternative, but rather the Accused is alleged to have committed all forms of liability at any one time.

11. It is submitted that in charging the offence in this manner, the Tribunal has failed to establish the legal characterization of the offence, contrary to section 16(2) ICTA. Furthermore, it is highlighted that in charging several modes of liability in a single count defeats the strict right to adequate preparation of defence guaranteed in Article 14(3)(b) International Covenant on Civil and Political Rights (hereinafter: ICCPR) which is an important element of the guarantee of a fair trial and an emanation of the principle of equality of arms” [HRC,Smith v. Jamaica (282/88) para. 10.4].

12. The Defence is unable to prepare a cogent defence in support of the Accused-Petitioner as the threshold for each mode of liability is distinct from one another.

13. The standard legal burden, which the Prosecution bears in proving an accused participated in an offence, is that of “beyond reasonable doubt” pursuant to Rule 50 RoP.

14. In contrast, the threshold for superior responsibility differs significantly. In Prosecutor v Halilovic [ICTY Trial Judgment, para. 54] it was held, “Under Article 7(3) command responsibility is responsibility for an omission. The commander is responsible for the failure to perform an act required by international law. This omission is culpable because international law imposes an affirmative duty on superiors to prevent and punish crimes committed by their subordinates. Thus “for the acts of his subordinates” as generally referred to in the jurisprudence of the Tribunal does not mean that the commander shares the same responsibility as the subordinates who committed the crimes, but rather that because of the crimes committed by his subordinates, the commander should bear responsibility for his failure to act. The imposition of responsibility upon a commander for breach of his duty is to be weighed against the crimes of his subordinates; a commander is responsible not as though he had committed the crime himself, but his responsibility is considered in proportion to the gravity of the offences committed. The Trial Chamber considers that this is still in keeping with the logic of the weight which international humanitarian law places on protection values.” (emphasis added)

15. This interpretation of responsibility was upheld by the ICTY Trial Chamber in Prosecutor v Hadzihasanovic (para. 75): “The Chamber subscribes to the findings of the Halilovic Chamber. Since command responsibility under Article 7(3) of the Statute is the corollary of a commander’s obligation to act, that responsibility is responsibility for an omission to prevent or punish crimes committed by his subordinates. The responsibility is “sui generis”, distinct from that defined in Article 7(1) of the Statute.”

16. In contrast again, the threshold for complicity, which is recognised as an umbrella term for aiding and abetting (see Kai Ambos, ‘Article 25’ in O. Triffterer, Commentary, p. 756) has been recognised in international customary law as one of “substantial contribution”, in other words, the abetment must have substantially contributed to the commission of the offence. This is neatly provided for in the Prosecutor v Kvocka Appeals Judgment, whereby the ICTY Appeals Chamber stated that: “Whether an aider or abettor is held responsible for assisting an individual crime committed by a single perpetrator or for assisting in all the crimes committed by the plurality of persons involved in a joint criminal enterprise depends on the effect of the assistance and on the knowledge of the accused. The requirement that an aider or abettor must make a substantial contribution to the crime in order to be held responsible applies whether the accused is assisting in a crime committed by an individual or in crimes committed by a plurality of persons” (IT-98-30/1-A 28 February 2005, para. 90).

17. In contrast again, incitement, whether an act or an omission [Prosecutor v Blaskic Trial Judgment, para. 280; Proseccutor v Kordic and Cerkez Trial Judgment, para. 387], has been recognised as an offence in international customary law only in certain circumstances. It must be direct and explicit and commission of the crime by other persons must follow up. In other words, incitement is not punished per se, but only if it leads to the perpetration of a crime [Blaskic TJ, para. 278; Kordic TJ, para. 387]. Further, the requisite subjective element is as follows:
a. The accused “directly intended to provoke the commission of the crime” [Blaskic TJ, para. 278; Kordic TJ, para. 387]; or
b. The accused was at least aware of the likelihood that commission of the crime would be a consequence of his action; and
c. The accused must possess the mens rea concerning the crime he is instigating [Prosecutor v Kvocka TJ, para. 252; Prosecutor v Naletilic and Martinovic TJ, para. 60].

18. It is submitted that in addition to the requirement to establish the legal characterization of the offence under section 16(2) ICTA, 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]

19. It is for this reason that international jurisprudence strictly adheres to the need for specific modes of liability in each count. For example, most recently (albeit in relation to a summons of an arrest warrant which is indeed a threshold lower than the indictment stage) the ICC Pre-Trial Chamber in Prosecutor v. Ruto, Kosgey and Sang, held: “Although the Prosecutor may generally charge in the alternative, he should be consistent throughout his Application about the actual mode(s) of liability that he intends to present to the Chamber. Moreover, the possibility for the Prosecutor to charge in the alternative does not necessarily mean that the Chamber has to respond in the same manner. In particular, the Chamber is not persuaded that it is best practice to make simultaneous findings on modes of liability presented \ in the alternative. A person cannot be deemed concurrently as a principal and an accessory to the same crime. Thus, it is the Chamber's view that an initial decision has to be made on the basis of the material provided, as to whether there are reasonable grounds to believe that Ruto, Kosgey and Sang bear criminal responsibility for the crimes against humanity that occurred in the specific locations in the Republic of Kenya, as discussed in section II above, either as co-perpetrators, indirect coperpetrators, or any other form of liability presented or that the Chamber finds appropriate.” (emphasis added) [ICC-01-/09-01/11, Decision on the Prosecutor's Application for Summons to Appear for William, Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, 8 March at para. 36]

20. For this reason, it is submitted that Counts 1 to 16 cannot be framed against the Accused-Petitioner in their current form.

Duplicitous Charging
21. Firstly, in furtherance of the above submission, it is recalled that in Charge 9 the Prosecution is charging both genocide and crimes against humanity within the same charge. This is a form of duplicitous charging which is prejudicial to the Accused-Petitioner as it fails to differentiate between separate offences within one charge.

22. Secondly, in Charges 1 to 5 and 7 the Prosecution has referred to several crimes against humanity within one charge and failed to distinguish between these. For example, Charge 2 details alleged acts of murder, rape and deportation. It is submitted that this is another form of prohibited duplicitous charging.

23. Thirdly, Charges 2 and 4 are composed of distinct offences and should be separated.

a. In paragraph 1 of Charge 2 the Accused-Petitioner has been charged with the killing of 450 civilians, 49 of whom are named, from the village of Baousgari, Ruposhi and Demra. In paragraph 2 of Charge 2, the Accused-Petitioner is charged with the rape of “about 30-40 women”, many of whom “were forced to leave the country”.

b. Similarly, in Charge 4, the Accused-Petitioner has been charged with the killing of Habibur Rahman on or about 24/25 April 1971; the killing of ten persons from the village of Karamja on the 8 May 1971; the rape of “Shebani, the daughter of Megha Thakur, son’s wife and two other Muslim women”; the looting of belongings of Megha Thakur and destruction of the house of Wahed Pramanik.

24. It is submitted that the alleged killing of 450 civilians is a distinct offence from the alleged rape of 30-40 women and therefore Charge 2 contains two separate incidents. Similarly, it is submitted that the allege murder, of Habibur Rahman; the alleged killing of ten people; the alleged rape; the alleged looting and destruction of the house are also distinct offences and therefore Charge 4 contains four separate incidents. As a result, it is submitted that this form of duplicitous charging is prejudicial to the Accused-Petitioner as it fails to differentiate between separate events within one charge.

25. The end result is that any conviction or acquittal of an offence within a multi-offence count will not be recognised which is particularly important at the sentencing stage.

26. For this reason, it is submitted that Charges 1, 2, 3, 4, 5, 7 and 9 are unspecific and contrary to section 16 ICTA as well as Bangladesh’s obligations under Article 14(3)(a) ICCPR.

Elements of crime 

Section 3(2)(f) ICTA
27. Section 3(2)(f) ICTA provides the Tribunal with the power to try and punish “any other crimes under international law”. In Charges 11 to 14, the Accused-Petitioner has been charged with incitement under this section.

28. Paragraph 17 of this Review contains a detailed summary of the strict legal threshold to be met when prosecuting a charge of incitement.

29. It is respectfully submitted that where the offence of incitement is alleged, the nature of the speeches allegedly held by the Accused-Petitioner in August and September 1971 does not constitute a crime.

30. It is submitted that Charges 12, 13, 14 and the second paragraph of Charge 11 fail to establish the required causal link between the speeches allegedly held by the Accused-Petitioner and the commission of crimes against humanity. All three charges state, with minor differences in wording, that the Accused-Petitioner incited people “to take revenge and eliminate those struggling to free Bangladesh from occupation of Pakistani occupation”. Respectfully, this is not enough. Therefore, it is submitted that these three Charges fail to meet the threshold and should be dropped.

31. Further, in the third paragraph of Charge 11, the Accused-Petitioner is accused of incitement by omission, by being silent during a speech termed “hateful” by Abu Naser. It is respectfully submitted that, though omission can amount to incitement, the Accused-Petitioner’s silence in this Charge cannot amount to incitement because it does not meet the “direct and explicit” test.

32. Moreover, it is submitted that quoting from the Quran does not amount to an offence. Article 18 of the Universal Declaration of Human Rights (hereinafter: UDHR) enshrines the right to freedom of thought, conscience and religion, which includes the freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. Article 19 UDHR provides the right to freedom of opinion and expression, including the freedom to hold opinions without interference. The Human Rights Committee has most recently discussed this right in its General Comment No. 34 in 2011. It states that this right is non-derogable and “binding on every State party as a whole” [para. 7]. Of particular notes it states: “Paragraph 1 of article 19 requires protection of the right to hold opinions without interference. This is a right to which the Covenant permits no exception or restriction. Freedom of opinion extends to the right to change an opinion whenever and for whatever reason a person so freely chooses. No person may be subject to the impairment of any rights under the Covenant on the basis of his or her actual, perceived or supposed opinions. All forms of opinion are protected, including opinions of a political, scientific, historic, moral or religious nature. It is incompatible with paragraph 1 to criminalize the holding of an opinion. The harassment, intimidation or stigmatization of a person, including arrest, detention, trial or imprisonment for reasons of the opinions they may hold, constitutes a violation of article 19, paragraph 1.

Any form of effort to coerce the holding or not holding of any opinion is prohibited. Freedom to express one’s opinion necessarily includes freedom not to express one’s opinion” [paras 9 and 10].

33. For this reason, it is submitted that Charges 11, 12, 13 and 14 do not stand up to scrutiny, are contrary to section 16 ICTA as well as Bangladesh’s obligations under Article 14(3)(a) ICCPR and should be dropped.

Section 3(2)(g) ICTA
34. Section 3(2)(g) ICTA provides the Tribunal with the power to try and punish “attempt, abetment or conspiracy to commit any such crimes” as under the Act. In Charges 3 and 15, the Accused-Petitioner has been charged with conspiracy under this section.

35. Paragraph 16 of this Review contains a detailed summary of the legal threshold to be met when prosecuting a charge of conspiracy: a “substantial contribution” to the commission of the offence. The test does not allude to any offence, but the offence. Further, the Kvocka Appeals Judgment stated that responsibility hinged upon “the effect of the assistance and on the knowledge of the accused”.

36. Charge 3 states that the Accused-Petitioner “conspired [at the Physical Training Institute] with the army officers in order to commit different international crimes against the Bengalis as a result of which throughout the country the auxiliary forces and the Pakistan army committed different international crimes.”

37. In addition, Charge 15 states that “as a result [of] such conspiracies, those Razakars have committed different crimes under the Act and you had complicity in those offences”.

38. It is respectfully submitted that it is impossible to determine whether the Accused-Petitioner’s had a substantial contribution, if any at all, to offences defined as “different international crimes” or “different crimes”.

39. For this reason, it is submitted that Charges 3 and 15 are unspecific and contrary to section 16 ICTA as well as Bangladesh’s obligations under Article 14(3)(a) ICCPR.

Definitions of offences
40. Section 3(2)(a) ICTA provides the list of crimes against humanity that fall within the jurisdiction of the Tribunal. Charge 1 of the 28 May 2012 Order includes “arrest” as a crime against humanity under this section.

41. It is respectfully submitted that “arrest” does not amount to an offence under this section.

42. It is recalled that previous defence submissions have respectfully called for the Tribunal to implement the necessary requirement to establish the contextual elements of crime in the Act so as to be able to ascertain whether the offence has been established.

43. It is respectfully re-submitted that it is in the interests of justice for the contextual elements of crimes against humanity to be established so that the Prosecution, Defence and Tribunal can be sure as to the extent or to which elements must be proven in order to secure either an acquittal or conviction. For this reason the Defence submits that the practice of international tribunals, specialising in crimes against humanity and genocide be taken into account at this stage in order to prevent confusion and delay during trial proceedings.

44. The ICC has documented the contextual elements of crimes against humanity in its ‘Elements of Crimes, Crimes Against Humanity’, which articulates exactly what needs to be proven in order to convict someone for any of the dozens of crimes listed within Articles 7 of the Rome Statute.

45. It is recalled that in its order dated 3 October 2011 in ICT BD Misc. Case No. 01 of 2011 in the matter of Delewar Hossain Sayedee, the Hon’ble Tribunal 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 emphasised 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.

46. For this reason, the Hon’ble Tribunal is, first, respectfully invited to establish clear definitions of Crimes against humanity, their mens rea, their actus reus and the elements of the offence in anticipation of the commencement of the trial against the Accused-Petitioner and other trials before the Hon’ble Tribunal. Secondly, it is respectfully requested that “arrest” be removed from Charge 1.

Incorrect charging
47. Pursuant to Rule 35 RoP, It is recognised the the Hon’ble Tribunal has the discretion to frame a charge against the Accused-Petitioner where it is supported by evidence in the formal charge, the Investigation Report, documents and materials.

48. Rule 37 RoP provides that where the Hon’ble Tribunal finds that where there is no sufficient ground to presume that the accused has committed an offence, it shall discharge the accused. Conversely, Rule 38 RoP provides that if, after consideration and hearing under Rule 37, the Tribunal is of the opinion that there is sufficient ground to presume that the accused has committed an offence, the Tribunal shall frame one or more charges for the offence of which he is accused.

49. The Hon’ble Tribunal has made use of its discretion in the framing of Charge 16, under which the Accused-Petitioner is charged with genocide under section 3(2)(c)(i) ICTA, intention to eliminate Bangladesh professionals and intellectuals, amongst others on or around 14 December 1971.

50. It is respectfully submitted that where a Tribunal seeks to frame a charge not presented by the Prosecution, it must meet a higher standard than that imposed on the Prosecution, as the Prosecution may not be able to introduce sufficiently strong evidence to prove all the elements of the offence.

51. With regards to Charge 16, whilst it is recognised that evidence tendered by the Prosecution shows the Accused-Petitioner was in command of Al-Badar during the relevant period, it is respectfully submitted that it fails to reveal any nexus between the Accused-Petitioner and the offences under section 3(2)(c)(1) ICTA committed on or around 14 December 1971 with which he is charged under Charge 16. Indeed, there is little specific evidence of any crimes at all committed on or around 14 December 1971.

52. It is respectfully reminded to the Hon’ble Tribunal that the threshold for command responsibility strictly requires a relationship between the superior and the subordinate, knowledge of the offences, and a failure to prevent or punish the offences.

53. It is respectfully submitted that the statements by each the witnesses fail to establish any nexus between the Accused-Petitioner and the events of 14 December 1971 as laid out in Charge 16.

54. Consquently, there is insufficient to draw any inference on the Accused-Petitioner’s authority over the offences in Charge 16 and, therefore, there is no proper basis for framing Charge 16.

55. More significantly, in framing Charge 16 without proper evidence, it is respectfully submitted that the Hon’ble Tribunal has exceeded its proper mandate: The Hon’ble Tribunal has made a determination on the merits and it cannot now sit in the judgment of Charge 16.

56. For this reason, the Hon’ble Tribunal is respectfully invited to remove Charge 16 from the 28 May 2012 Order.

Expunging inappropriate information and expressions
57. It is respectfully submitted that the 28 May 2012 Order should be expunged of inappropriate language in Charge 16, namely of the words “infamous” and “Gestapo” in relation to Al-Badar.

58. Equally, on page 5 and paragraph 3 of the 28 May 2012 Order the Hon’ble Tribunal states that the Awami League Election Manifesto justifies this trial. It is respectfully submitted that this opinion is inappropriate in that it confuses the prerogatives of the judiciary and executive and call into question the independence of the Hon’ble Tribunal from the current government.

59. Further, on page 6 of the 28 May 2012 Order the Hon’ble Tribunal states that the Accused-Petitioner “assisted Professor Golam Azam in forming the Shanti Committee, Razakars, Al-Badar, Al-Shams etc.” It is respectfully submitted that this comment, made in the preamble of the 28 May 2012 Order does not amount to a formal charge properly supported by evidence. It is therefore submitted that it is inappropriate and ought to be expunged.

60. Finally, it is respectfully that the Prosecution failed to reply to the Defence’s application for discharge on 11 February 2012 and therefore that the Hon’ble Tribunal erred in incorporating a summary of the Prosecution’s reply to discharge on pages 10 to 12 of the 28 May 2012 Order. Wherefore, it is respectfully requested that the Hon’ble Tribunal expunge these arguments from the 28 May 2012 Order.

61. For the abovementioned reasons, the Accused-Petitioner prays that the Hon’ble Tribunal exercise its discretion in the interests of justice as provided for in Rule 26(3) and conducts an immediate review of the 28 May 2012 Order.

Mizanul Islam raises three new points of their review application.

One is, to prosecute war criminal was in the election manifesto of the Awami league.

Justice Nizam: we have already heard this ground and this matter is disposed of.

Second one is, this law was only made for those 195 criminals who were given clemency.

Justice Nizam: This also has been heard.

Third one is, recitation from the Quran can not be a ground for incitement.

28 May 2012: Nizami indictment 2

This is the final part of the indictment/charge framing order relating to Nizami. The first sections are on this page

Charges 

We Justice Md.Nizamul Huq, chairman, Justice Anawarul Haque and A.K. M Zaheer Ahmed Members of the International Crimes Tribunal-1, hereby charge you Matiur Rahman Nizami' son of late Md Lutfurr Rahman of village-Monmothpur, Police Station-Sathia, Disrict- Pabna, at Present House No 60 Road No 18 Banani Police Station- Gulshan, District-Dhaka as follows:

Charge no 1:  

That on 4.6.1971 Kasim Uddin the Head Moulana of Pabna Zia School, was arrested by Pakistan Army from "Moslem Kha Te Matha" as he was perceived to be a supporter of the campaign to free Bangladesh of Pakistani occupation, and a social worker; you intended to eliminate him and at you instigation, he was arrested. After arrest he was taken to the army camp at Nurpur WAPDA powerhouse in Pabna town, and there, in your presence' he was severely tortured. Later on 10.6.1971 he was taken to the bank of lsamoti River along with two other persons. Then they were fired at and all three were killed. You were clearly responsible for causing arrest, detention, torture and killing of the above victims and in this regard, commission of the crimes specified in section 3(2)(a) of the Act.

Through your above acts and commissions' you caused arrest detention, torture and murder of above victims as crimes against humanity specified in section 3(2)(a) of the Act and therefore you are charged under section 3(2)(a) read with section 4(1) and section 4(2) of the Act which is punishable under section 20(2) of' the Act"

Charge Number 2: 

That on 10.05.1971,you invited the inhabitants of village Baousgari Ruposhi primary school for a meeting where you made a speech telling the villagers that soon Pakistan Army will arrive there to secure "peace" in the area. Indeed, on 14.05.1971 at about 6.00/6.30 a.m. the members of Pakistan army arrived there along with the Razakars and Asad, your accomplice. They surrounded the villages of Baousgari Ruposhi and Demra and then picked up about 450 civilians who were all shot-at and killed. Those killed, amongst others, were [49 specific names set out] Before killing, the victims were compelled to stand together beside a large ditch. The entire operation was carried out pursuant to prearranged plan to indiscriminately eliminate civilians. Killings over, the army and Razakars then raped about 30-40 women, as a result of which, many of the rape victims were forced to Ieave the country and as such effectively deported to India as refugees. The said Razakars, composed of your followers, were organized under your direction. Your meeting at Baousgari Ruposhi Primary School on 10.05.1971, prima facie establishes that the said crimes of 14.05.1971 were pre-planned and commissioned with your knowledge, and that you were responsible for conspiracy, killing raping and deportation of the said civilian victims.

Through your above acts and commissions, you conspired to commit crimes under section 3(2)(g) of the Act, and caused murders, rapes and deportation of above victims as crimes against humanity specified in section 3(2)(a) of the Act, and therefore you are charged under section 3(2)(a) and 3 (2)(g) read with section 4(1) and section 4(2) of the Act which is punishable under section 20(2) of the Act.

Charge Number 3: 

From beginning of May 197!, as a reader of Islami chattra Shangha, you along with other leaders of Jamaat-e-Islami regularly paid visit to physical training institute, Mohammadpur, Dhaka, which was turned by Pakistan army into a training center for various auxiliary forces including Razakars and Al-Badar. The Center was used as a detention camp and torture center. It quickly earned notoriety and because mere utterance of its named chilled spine of the people in 1971 as it was a killing ground and victims were always killed after brutal torture. It was also a center where practical arrangements were made to eliminate victims, plan drawn and executed. As a chief of Al-Badar Bahini, during your visits, you also conspired there with the army officers in order to commit different international crimes against the Bengalis, as a result of which throughout the country the auxiliary forces and the Pakistan army committed different international crimes. Your visits to the torture and killing ground at the physical training Institute, Mohammadpur, Dhaka as leader of Islami Chattra Shangha and AI-Badr Bahini to conspire to commit crimes under section 3(2)(g) of the Act, confirmed and clearly demonstrate your complicity to the international crimes committed there.

Through your above acts and commissions, you conspired to commit crimes under section 3(2)(g) of the Act, and were complicit in torture, murder and rape committed there, and also for the trainings glven to auxiliary forces who went on to commit further crimes of torture, murder and rape constitute crimes against humanity specified in Section 3(2)(a) and 3(2)(h) of the Act, and therefore you are charged under section 3(2)(h), section 3(2)G) and section 3(2)(a) read with section 4(1) and section 4(2) of the Act which is punishable under section 20(2) of the Act.

Charge Number 4: 

That along with a group of Razakars you went to the village Karamja and reminded the villagers that they will face consequences for not voting in your favor in the last election. Then on or about 24/25 ApriI, 1971 on your direction and planning, you and others, along with local Razakar Afzal with help of other Rizakers, killed Habibur Rahman Sarder of Purbo Karanja at the bus stand allegedly for helping the freedom fighters. Thereafter, sequence to your same plan, in early morning on 08.05.1971, member of your Al-Badar Bahini, Rafikunnabi Bablu along with Razakars reached the village Kalantja with Pakistani military forces and surrounded the house of Megha Thakur, and started indiscriminate firing. Eventually, 1) Megha Thakur, 2) Sosthi Halder, 3) Adu Halder, 4) Karu Thakur, 5) Kartik Haldet, 6) Suresh Chandra Halder, 7) Deju Halder 8) Mohammad Fakir Chand 9) Santi Halder and 10) Murali Das were detained. They were directed to stand on a queue and then shot at and killed. Tara Halder was injured and he somehow managed to escape. Later. on, members of the Pakistani military forces with the help of Razakars Asad, Muslem and Afjal raped Shebani, the daughter of Megha Thakur son's wife and two other Muslim women. After departure of the Pakistani Army, the Razakars looted the belongings of Megha Thakur and destroyed the house of Wahud Pramanik by setting it on fire.

Thus, through your above acts and commissions, you conspired to commit crimes under section 3(2)(g) of the Act, and were complicit in murders, rapes, looting and destruction of properties committed in the village Karamja that constitute crimes against humanity as murder, rape and persecution specified in section 3(2)(a) and 3(2)(h) of the Act and therefore you are charged under section 3(2)(h), section 3(s)(g) and section 3(2)(a) read with section 4(1) and section 4(2) of the Act which is punishable under section 20 (2) of the Act.

Charge Number 5: 

That at about 11.00 a.m. on 16.4.1971 with your help, your associates and pakistan military forces attacked villages Arpara and Vutergari under Ishwardi Police Station and killed 21, unarmed civilians including 1) Hafez omar Ali, 2) Abdur Rab, 3) palan Sheikh, 4) Ahad sheikh, 5) Hafez omar Sheikh, 6) Abdur Rab shiekh ,7) Jabbar Shiekh, 8) Jindar Sheikh, 9) Seraj Sheikh, 10) Sabir Sheikh, 11) Fatik sheikh, 12) Nijamuddin Mollik of village arpara 13) Rustom Ali Mrida, 14) Jafor Mal, 15) Abdul Gafur Mat, 16) Waj pramanik, 17) Asim uddin pramanik, 18) Kasim uddin pramanik of village vutergari and 19) Ayej Fakir, 20) Reju Sarder of viliage patsra khali and Kulsum Baoa of village Naricha. Many others too were killed, houses looted and then destroyed by fire.

Through your above acts and commissions, you were clearly complicit in murder and persecution of above victims as crimes against humanity specified in section 3(2)(a) and 3(2)(h) of the Act, and therefore you are charged under section 3(2)(h), section 3(2)(a) read with section 4(1) and section 4(2) of the Act which is punishable under section 20(2) of the 'Act.

Charge Number 6: 

That at about 3.30 a.m. on 27.11.1971, you along with Razakars and members of Pakistani military forces raided the house of Dr. Abdul Awal and other adjacent houses in the villages Dhulaura, on the pretext to find out freedom-fighters. At about 6.30 a.m. you along with your accomplice Razakars and members of Pakistani military got hold of number of men, women and children, and brought them to the field of Dhulaura School. Then they were shot at indiscriminately resulting in murder of about 30 persons. After departure of members of Pakistani military, you along with your accomplices Razakars caught 22 other persons who survived from the hands of Pakistani military and took them to the bank of river Isamoti. All of them were bayoneted and killed. All the victims of this operation were unarmed civilians.

Through your above acts and commissions, you were clearly involved in and responsible for murder of above victims as crimes against humanity specified in Section 3(2)(a) of the Act and therefore you are charged under section 3(2)(a) read with section 4(1) and section 4(2) of the Act which is punishable under section 20(2) of the Act.

Charge Number 7: 

That after midnight on 31.2.1971, on receiving information from you and the Razakars, the Pakistan Army surrounded the village Brishalikha and arrested Sohrab AIi from his house at about 5.30 in the morning. He was brought on to the road and tortured inhumanly, and asked questioned about whereabouts of his son Mohammad Abdul Laif Selim. Failing to extract information, he was shot-at and killed in presence of his wife and children.

Through your above acts and commissions, you were clearly complicit in torture and murder of the above victim as crimes against humanity specified in Section 3(2)(a) and 3(2)(h) of the Act and therefore you are charged under section 3(2)(h), section 3(2)(a) read with section 4(1) and section 4(2) of the Act which is punishable under section 20(2) of the Act. Charge

Charge Number 8: 

That on August 30, 1971, you as president of Isrami chattra Sangha and Head of the Al Badr Bahinid, accompanied by Ali Ahasan Mujahid, secretary of the East Pakistan Islami chattra sangha, visited the Army Camp at the old MP Hostel in Dhaka, where you verbally abused detained Jalal, Bodi, Rumi, Jewer and, Azad. You told the Pakistani captain there to kill all of them before the president declares the general amnesty. Subsequently, except one, all of them were killed following your suggestion.

Thus through your above acts and commissions, you have committed the crime of murder of the above victim as crimes against humanity specified in Section 3(2)(a) of the Act, and therefore you are charged under section 3(2)(a) read with section 4(1) and section 4(2) of the Act which is punishable under section 20(2) of the Act.

Charge Number 9: 

That on 31.12.1971, based on information supplied by you and the Razakars, the members of Pakistani military, past midnight surrounded the village Brisharikha. After committing other crimes in the village, and in order to destroy in whole or in part the members Hindu rerigious group, with your help, members of pakistani military and the Razakars killed (1) Profulla, 2) Vadu, 3) Manu 4) Sosthi pramanik (5) Gyanendranath Hawlader, (6) Paltu and in total about 70 Hindus. AIso 72 houses of the village were set alight and destroyed.

Through your above acts and commissions, you have committed the crime of genocide as you intended to eliminate the above victims and others, in whole or in part, members of Hindu religious group as crime of genocide specified in section 3(2)(c)(i) of the Act and crime of persecution as crimes against humanity under section 3(2)(a) of the Act and therefore you are charged under section 3(2)(c)(i) and section 3(2)(a) read with section 4(1) and section 4(2) of the Act which is punishable under section 20(2) of the Act.

Charge Number 10: 

That at the start of the liberation war, Onil Chandra Kundu along with his parents, brothers and sisters left the country and went to India as refugee for safety. However, in august 1971, he came back to his village Sonatala under police station Sathia. You obtained information that he allegedly was taking part in liberation war; on your direction, the local razakars destroyed their house and many other houses by setting on fire.

Through your above acts and commissions, you have thus committed the crime of persecution as crimes against humanity specified in section 3(2)(a) of the Act, and therefore you are charged under section 3(2)(a) read with section 4(1) and section 4(2) of the Act which is punishable under section 20(2) of the Act.

Charge Number 11: 

That on August 03,1.977, during a meeting of the Chittagong City unit of the Islami Chatra Sangha held at the Muslim Institute of Chittagong, you as the President of the Pakistan Islami Chataa Saflgha and the person holding all powers over fronts and subsidiaries opened by the Istami Chattra Sangha, stated that Pakistan was the house of Allah. You stated that Allah had protected Pakistan repeatedly and would do so in the future as well. Furthermore, you went on to say that there was no power on earth that could destroy Pakistan. You stated that Allah had taken custody of Pakistan through the Pakistan Army. Through this speech invoking almighty Allah you intended to exploit religious sentiment of the people and incited the innocent and pious Muslims to commit crimes by acting against the Bangalees who were struggling to oust Pakistani occupation and auxiliary forces from Bangladesh. Pursuant to your such incitements, Islami Chattra Shangha, Al-Badar, Razakars and others carried out numerous widespread and systematic attacks throughout the country resulting in murder, torture, raping of civilians. Moreover, during the above-mentioned meeting, Abu Naser, the President of the Chittagong university unit of Islami chattra Sangha stated that there would never be any unity with Hindus as created a separate country Pakistan at the cost of the sacrificce of twenty lakh lives, You presence and silence during such an inciting hateful speech confirms your intention to incite.

Through your above acts and commissions, you have thus committed the crime of incitement specified in section 3(2)(f) of the Act, and therefore you are charged under section 3(2)(f)read with section 4(1) and section 4(3) of the Act which is punishable under section 20e) of the Act.

Charge Number 12: 

That on August 22, 1,977, you during a speech given at a meeting organized in remembrance of Al Madani held at the Islamic Academy Hall, you stated that taking revenge for the Al Madani’s blood would only prove their respect for AI Madani. You further stated that the taking of such revenge would only be possible by uprooting the enemies of Islam. You cautioned the audience by stating that the history of Islam was not only about people losing their lives, but were also about the destroying of Islam's enemies and the becoming of martyrs and upholding the principles of Atlah. You clearly stated that those persons who wanted a separate pakistan were also those very persons who wanted to uproot Islam from Pakistan. You mentioned that the enemies . of Islam had taken up arms and urged everyone to follow the path left by Madani and dive into Jihad. This speech given by you sorely intended to gravely incite minds of innocent people, members of your political Party to go after an eliminate those who are struggling to free Bangladesh from Pakistani occupation, terming them as enemies of Pakistan and thus commit crimes under section 3 (2) (f)of the Act.

Thus through your above acts and commissions, you have committed the crime of incitement specified in Section 3(2)(f) of the Act, and therefore you are charged under section 3(2)(f) read with section 4(1) and section 4(2) of the Act which is punishable under section 20(2) of the Act.

Charge Number 13: 

That on September 08, 1971, during your speech given the Arts Building premises at a gathering of students organized by the Dhaka City unit of Islami Chattra Sangha on the occasion of the Defence Day, you stated that all members of the Islami Chattra Sangha were fully - committed to protecting every single inch of their country. You further stated that such members were even prepared to strike on the main land of India for the sake of protecting Pakistan and urged the authorities to grant permission to the members of the Islami Chattta Sangha in this regard. You stated that the main enemy of Pakistan was India and undertook oaths of all those present that they would eliminate the persons who were collaborating with India. This was a highly inciting speech made you intended to affect innocent people to incite them and members of your political party to take revenge and eliminate those struggling to flee Bangladesh from occupation of Pakistani military forces who you consider collaborate with India and as such, target of attacks and commission of, crimes under the Act.

Thus through your above acts and commissions, you have committed the crime of incitement specified in Section 3(2)(f) of the Act, and therefore you are charged under section 3(2)(f) read with section 4(1) and section 4(2) of the Act which is punishable under section 20(2) of the Act.

Charge 14:  

That on September 10 of 1971, you gave a speech addressing Razakars at the Jessore district Razakar headquarters during which you urged the Razakars to be fully aware of their holy duties at this tirne of national crisis by emphasizing upon verses 1.1,1. and. 112 of surah Toubah of the Holy Quran. These two verses meant that AIIah had surely purchased the life and soul from pious people in exchange for which there was heaven and that it was the duty of those pious persons to fight along the path set by Allah during which they would get killed and sometimes be kined. By quoting the holy Quran and invoking religious sensitivities, you incited the members of the Razakars to take revenge and eliminate those fighting to free Bangladesh from pakistani occupation, and thereby to commit crimes under the Act.

Thus through your above acts and commissions, you have committed the crime of incitement specified in section on 3(2)(f) of the Act and therefore you are charged under section 3(2)(f) read with section 4(1) and section 4(2) of the Act which is punishable under section 20(2) of the Act.

Charge Number 15: 

That during the period of liberation war, you frequently visited the Razakar camp situated at Sathia Pilot High School and conspired with the Razakar commander Samad Miah at his office to commit crimes. As a result such conspiracies, those Razakars have committed different crimes under the Act in the locality and you had complicty in those offences. Thus through your above acts and commissions, you have .committed the crime of conspiracy to commit crimes specified in section 3(2)(g) of the Act and were complicit in crimes committed under section 3(2(h) and therefore, you are charged under section 3 (2) (g), and section 3(2((h) read with section 4(1) and section 4(2) of the Act which is punishable under section 20(2) of the Act.

Charge Number 16:  

That throughout the period when crimes under section 3 (2) of the Act were committed in Bangladesh, you as President of Islami chattra sangha and Head of infamous Al-Badar, an auxlliary force, that committed said crimes all-over Bangladesh under the Act over the period, but when defeat of Pakistani occupation and auxiliary forces were imminent, your organisation Islami Chattra Sangha and Al-Badar mounted Gestapo like attacks to devoid Bangladesh professionals and intellectuals, amongst others, and launched mortal blow to free and independent Bangladesh, by selective elimination of respected professionals and intellectuals, found their homes, dragged out, often blind-folded, tortured, murdered and their bodies then dumped in mass graves and other places. Such attacks were largely carried out on or around 14 December 1971, hours before victory of Bangladesh from occupation of Pakistani and auxiliary forces. These well orchestrated and finely executed plans to eliminate a group of individuals who were all members of a national, ethnic and racial group.

Through your above acts and commissions, you have committed the crime of genocide as you intended to eliminate the above victims and others, in whole or in part, as members of national, ethnic and racial soup as crime of genocide specified in section 3(2)(c)(i) of the Act and therefore you are charged under section 3(2)(c)(i), read with section 4(1) and section 4(2) of the Act which is punishable under section 20 (2) of the Act

Thus, you have committed the offences, under different provisions of section 3(2) and section 4 of the Act which are punishable under section 20(2) of the Act and within the cognizance 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.

Are you guilty or not-guilty? Ans. Not guilty.

Nizami then made the following statement (summary)

Your honor; I would like to state it in clear terms that I’ve no other involvements than in politics in the 1971 war. If the power was transferred as per the election of 1970 to the elected people, in that case certainly this tragic incident would not been happened. Jamaat-e-Islami has never created any obstacles in transferring the power; this has only been done by Mr. Julfiquar Ali Bhutto. We are in no way involved with the incidents of genocides and other activities which are titled as crimes against humanity. I was the only son of my parents, but I didn’t visit my village to visit them in the period of war. All the incidents stated there in the charges are totally fake in the history of time.
195 has been freed not because of political reason but because of satisfying the leadership of Mr. Bhutto. In 1974 Mr. Bhutto has visited Bangladesh and received a splendid reception.  

Chairman, you have been on Haj. This is not the place of final judgment, we all have to face the final judgment day of the Almighty Allah. Hearsay would not be counted as evidence in a case.

Justice Nizamul Huq: You have to finish. Your consul will defend your case. And you will get the chance to talk afterwards. Now it is only the stage to say whether you are guilty or not.

Motiur Rahman Nizami [Accused]: I pray to the Almighty for all of your welfare. [He recited some verses from the Holy Quran.]

The chairman then continued reading out his order

The charges are read over and explained to the accused on dock who pleaded not guilty and claimed to be tried. 

To 01.7.2012 for opening statement of prosecution and examination of prosecution witnesses. The trial shall be continuing on every working days until further order. The defence counsel is also directed to submit a list of witnesses, if any along with four sets of documents thereof, which the defence intends to rely upon by the date fixed.

28 May 2012: Nizami indictment 1

The hearing started with tribunal chairman reading out the following order (copied from the written order). It is divided into the following sections

- introduction

- historical context

- the accused

- procedural history

- submission by the prosecution and defense

- charges.

Below are the first five sections. The charges are on a separate page. The defense written application argued prior to this order can be found here.

Accused Motiur Rahman Nizami has been produced in this Tribunal by the prison authority. Today is fixed for passing order on charge matter and as such the record is taken up for order. Before passing the ordet we want to provide a brief background and context of the case, its history and the arguments put forward by both the prosecution and defence before this Tribunal.

Introduction 

International Crimes Tribunal-I (heteinafter referred to as the "Tribunal') was established under the Intrnational Crimes Tribunals) Act,1973 (hereinafter refetted t6 as the "Act) to provide for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes, and crimes under international law committed in the territory of Bangladesh. This Act was enacted to try the international crimes committed in Bangladesh in 1971 by Pakistan Army and auxiliary forces. This is a case bearing considerable signifi.cance for the people of Bangladesh as well as for the victims of international crimes committed in Bangladesh during the Liberation War, particularly between 25th March and 16th December 1971. As such, it is a significant moment in the legal history of Bangladesh when we are entrusted with the task to address the matter of framing the chatge involving international crimes under Section 3(2) of the Act.

Historical Context: 

[This section is almost identical to the one relating to Gholam Azam, see here)

The Accused 

The accused Motiur Rahman Nizami was born on 31.03.1943 in village-Monmothpur, Police Station-Sathia, District-Pabna. In his early life he studied in Boalmari Madrasha at Sathia and passed his Dakhil examination in 1955, then he passed lIim examination in 1959 and Fazil examination in 1961. He got his Kamil degree in Fiqh from Madrasa-e-Alia in Dhaka in 1963. He also got his graduation degree as private student in 1967 from University of Dhaka. During war of liberation he was the president of Pakistan Islami Chatra Shangha the student wing of. Jamaat-e-Islami and also the chief of Al-Badars, an auxiliary force, most of the members of which were members of peace committee and Islami Chatra Shangha. He joined Jamaat-e-Islami after completion of his student life and he was Ameer of Dhaka city unit as well as member of central executive committee of Jamaat-e-Islami from 1978-1982. He was also assistant secretary general of Jamaat-e-Islami from 1983 to December, 1988. He became the secretary general of the said party in December, 1988 and he remained their till 2000, then he became the Ameer of Jamaat-e-Islami in 2000 and he is still continuing that post. He assisted Professor Golam Azam in forming the Shanti Committee, Razakars, Al-Badar, AI-Shams etc. He was elected member of parliament in 1991 and was the leader of parliamentary party of Jamaat-e-Islami from 1991 till 28 December 1994. He was also elected a member of parliament in 2001 and he became the minister of the ministry of agriculture from 2001-2003 and thereafter, he was minister of the ministry of industries from 2003-2006.

Procedural History:  

The investigation agency established under the Act began investigating the accused for crimes committed in 1971 on the basis of the complaint registered as serial no. 1, dated 21.7. 2010. During investigation upon an application filed by the prosecution, the Tribunal vide order dated 02.08.2010 passed in ICT-BD Misc. Case 01 of 2010 showed him arrested in connection with the instant case. During investigation he was also interrogated by the investigating officer in safe home vide order of this Tribunal. Since his arrest the Tribunal has disposed of a number of bail petitions which were disposed of in accordance with law. In addition on the prayer of the accused, the Tribunal directed the relevant authorities to ensure better treatment of the accused in the hospital as desired and also directed the concerned authorities to provide him with 'heath friendly'' transportation while transporting the accused from prison to hospital and this Tribunal.

After completion of the investigation the investigating officer submitted the investigation report to the chief prosecutor and on the basis of that investigation report evidence of witnesses and documents received and collected during investigation, the prosecutors prepared the formal charge and submitted it on 17.12.2001 to this Tribunal. Upon perusal of the formal charge the Tribunal took cognisance on 09.01. 2012 - against the accused Motiur Rahman Nizami under section 3(2), 4(1) and 4(2) of the Act. Then this Tribunal fixed for hearing on the matter whether charge will be framed against the accused or not. The learned prosecutor Mr. Syed Haider AIi and Md. Altaf Uddin Ahmed made elaborate submissions on behalf of the prosecutions while the learned defence counsels Mr. Abdur Razzak and Mr. Tajul lslam made elaborate submissions on behalf of the defence. The defence also filed an application for discharge of the accused from the case. In following paragraphs we surmarise the submissions with the views of the Tribunal on the point whether charges will be framed against the accused and if framed, then on which counts.

Submission by the prosecution and the defence: 

The learned prosecutor Mr Syed Haider Ali at the outset of his submissions drew our attention to atrocities and crimes committed by the Pakistan Army, its auxiliary forces and supporters including the ties, who actively collaborated with the Pakistan Army during the liberation war of 1971 in Bangladesh. It was submitted that the accused was the president of Islami chatra Shangha, the student wing of Jamaat-e-Istami, and that he was personally involved in conspiracy and. planning as well as in incitement and complicity to commit international crimes, and in crimes against humanity proscribed under section 3(2) of the Act. As President, he had superior status over the leaders, members and followers of his party and also gave orders, permissions or acquiesced in commission of crimes. He was involved in planning to perpetrate crimes and execution thereof with the leaders of Jamaat-e-Islami and through them with the Pakistani Army and Authority. Moreover, he failed to discharge his superior status obligations to maintain discipline or exercise control or supervise the actions of subordinates while they committed such crimes and failed also to take necessary measures to prevent the commission of such crimes. Instead, he incited those acting under his authority, followers and others, to commit further crimes. He never restrained his followers and took any effective step to halt the crimes unleashed. It was further submitted that the accused was even personally involved in the commission of the offences which comes under the purview of section 3(2) of the Act.

It was also submitted that the documents collected during investigation and statement of witnesses established beyond reasonable doubt that the allegations narrated in the formal charge were indeed committed by the accused, and in proving the same, they have ocular, documentary and other evidences to establish the offences mentioned therein committed during independent war of 1971. The offences of which the accused is liable to be charged and his superior status liability are adequately defined in the Act in sections 3(2),4(1) and,4(2) and that the accused should be charged accordingly.

On the contrary, the learned counsel for the accused Mr Abdur Razzak, by filing an application on 22.03.2012 to discharge the accused emphatically argued that the purpose to enact the Act and establish the Tribunal was to prosecute only 195 prisoners of war who were all members of Pakistan while for the trial of others, the Collaborators order 1972 was promulgated pursuant to which many alleged collaborators were arrested, some of them tried and convicted. He submitted, that the said 195 prisoners of war, subject of the Act and the Tribunal, were given clemency by the government of Bangladesh, released and sent to Pakistan. When the principal and original offenders had been let go, he argued, that others who supported, collaborated, abetted cannot thus be tried for the commission of the same offence. It was further argued that the prosecution of Motiur Rahman Nizami has been for mala fide purpose in that only when Jamaat Islami did not extend political support to the present government, did the government moved against the Jamaat-e-islami leaders including the accused. As such he contended its being a clear case of mala fide and for collateral purposes and therefore the proceedings against Motiur Rahman Nizami is not sustainable in law. It was further contended that they have observed executive interferences affecting the trial because of which the process cannot continue. Moreover, trial also cannot proceed because the prosecution has not furnished reasoning as to why it has taken 40 years to start the proceedings, and in absence of such statement explaining the reasons for delay, fair trial demand that proceedings should not be allowed to continue. Mr. Abdur Razzak further submitted that in the formal charge, 15 counts of charges have been mentioned but on perusal of all the charges, it is clear that no prima facie case has been made therein and no relevant evidence has been provided with respect to any accusation, and maintained that not a single count speaks of an offence as such the accused should be discharged. He then placed before us that they do not deny that international crimes were committed during the war of liberation in 1971, but they assert that accused Motiur Rahman Nizami did not commit any of such crimes.

Finally, Mr Razzak assailed holding of the trial under the Act on the ground of established principle of criminal law; the principle of non retrospectivity, in that he submitted the offence was allegedly committed in 1971, whereas the Act was enacted in 1973, after alleged commission of crimes, and as such, the whole trial process is barred by law. The trial should have been held under laws which were prevailing in 1971 since the alleged crimes were committed in that year.

In response, the learned prosecutor submitted that at this stage of the process, as to whether charges will be framed or not, the submissions of the learned counsel of the accused are not relevant. He maintained that the Tribunal has to consider the formal charge, the statement of witnesses and other materials to decide as to whether there are materials to frame charge. Upon perusal of the formal charge, statements of the witnesses recorded by the investigation agency and the documents ' submitted therewith, if the Tribunal is of the opinion that there are sufficient materials that the accused has committed an offence under the Act, only then the charge will be framed, otherwise the accused shall be discharged. He further submitted that the offences being adequately defined and the allegations made in the Formal charge being not vague, rather definite and clear, a prima facie case against the accused person has thus been established. He further submitted that on perusal of the Act, it cannot be said that it was enacted to try and prosecute only 195 prisoners of war. Even if this argument is accepted that the Act was promulgated for trial of 195 prisoners, still then there are no bar to try any other Persons under the Act since section 3(1) categorically states that "A Tribunal shall have power to try and punish any individual or group of individuals, or any member of any armed, defence or auxiliary forces irrespective of his nationality, who commits or has committed in the territory of Bangladesh, whether before and after the commencement of this Act, any of the crimes mentioned in sub-section 2". He said, the amendment made in the Act in 2009 extending its jurisdiction to individual or group of individuals have been added which has further made it clear that not only the 195 prisoners of war but anyone who has committed the said offences as mentioned in section 3(2) of the Act would come under the purview of the section 3(1) of the Act and can be tried by this Tribunal. He maintained the trial has to be concluded on the basis of the Act as it stands today.

He further submitted that Collaborators Order was for trial of persons who allegedly collaborated with the Pakistan Army during 1971 liberation war. All offences mentioned in the schedule therein are offences of Penal Code but this Tribunal has to try those persons who have allegedly committed offence of section 3(2) of the Act which are not offences of the Penal Code and as such there is no bar holding trial of this accused under the Act. He argued when the Tribunal has duly taken cognizance based on prima facie evidence found against the accused, the Tribunal should proceed to charge the accused. He further submitted that the question of clemency of 195 prisoners of war has no bearing to this process and cannot act in any way to bar the trial of this accused and as such this argument also does not stand. Then he submitted that whether the accused is the principal or main offender or that he only abetted has to be settled in trial and therefore the submission that when main accused have been released, the trial of the abettors cannot be held also does not stand. Moreover, abetment itself is an independent offence in this Act. He further submitted that the prosecution of Motiur Rahman Nizami is not at all mala flde and/or for political purpose as the prosecution has proceeded only after completion of investigation by the Investigation Agency that found materials of his involvement in the atrocities committed during 1971 and submitted report to the prosecution. The prosecution then submitted the Formal Charge on the basis of the investigation report and other materials. He submitted, the question of malafide is a mixed question of fact and law and before examining witness, the accused cannot be discharged on the ground of mala fide. He pointed out that the question of non- retroactivity having been discussed and decided by this Tribunal in two earlier cases of Delwar Hossain Sayeedi and Salahuddin Quader Chowdhury resulting in rejection of the pleas of the accused persons, the same pleas cannot be considered as the issue has been conclusively decided. Finally, he submitted that the 15 counts submitted by the prosecution in the formal charge are all, well founded allegations and whether there are evidence or not in support of those counts is a matter of evidence and cannot thus be decided at this moment, and therefore the discharge petition filed by the accused is liable to be rejected and charge may be framed against the accused. He urged the Tribunal to frame charge against the accused upon perusal of the Formal charge, the statement of witness and other materials submitted.

We have heard the learned counsel for the accused and also the learned prosecutor and perused the materials on record. As regards the submission that Act was enacted to try 195 pakistani prisoners of war and collaborators order was promulgated for trial of other persons, and that as such the trial under the Act for a non-military person is not legal we are of the view that the Act is very clear in this regard. It was enacted to provide for detention, prosecution and punishment of persons for genocide, crimes against humanity war crime and other crimes under international law and that any individual or group of individuals, or any member of any armed defence or auxiliary forces, irrespective of his nationality, who commits or has committed in the territory of Bangladesh whether before or after the commencement of this Act, any the crimes mentioned in the Act, could be tried. It is a fact that initially 195 prisoners of war were screened out for trial but the Act does not indicate that other persons who committed the said offences cannot be tried. After the amendment made in 2009, where individual or group of individuals were brought under the Act’s jurisdiction, making it further clear that any person who is alleged to have committed offences could be tried under this Act and as such, on this basis, the trial can be held under the Act. The collaborators order, on the other hand, was promulgated to try the collaborators for committing different offences of Penal Code. And as such it cannot be said that the accused being a Bengali cannot be tried under this Act as the allegations arc clear and comes under the purview of section 3(2) of the Act and not under the Penal Code under Collaborator’s Order.

With regard to the clemency extended to the 195 prisoners of war, it is stated that the said clemency if at all, apply only to the said prisoners of war, and not to others. Moreover, this clemency given to the prisoners of war does not in any way debar the trial of the present accused in any manner. And in regard the submission that when principal perpetrators have been released, the associates cannot be tried does not also stand because it is evidence and evidence alone that will determine who was the principal offender and who was an associate. Moreover, abetrnent has been made a specific and independent offence in the Act and on this ground alone, the preferred argument on this point also does not stand. Mr Razzak further argued that the proceeding against the accused Motiur Rahman Nizami is mala fide and for political purpose. In this case, there is no allegation that the accused is being tried as Amir of Jamaat-e-Islami. Rather we are trying to determine whether the accused Motiur Rahman Nizami has committed any offence under section 3 (2) of the Act. On the question of this case being mala fide, which is a combination of both fact and law, this cannot be determined without taking evidence. If on evidence it is found that this proceeding is mala fide proceeding then the accused will be released but it cannot be said at this stage that the proceeding is a mala fide one and the accused is to be released. Mr Razzak also submitted that the proceeding was been interfered by the executive and since it is being held after 40 years, he cannot be tried. In criminal proceedings, time is not a bar. We are to find only if the accused has committed any offence under this Act 40 years and that is dependent on evidence. Regarding the executive interference, we note here that we are receiving news reports from different corners in favour as well as against the proceeding, but such reports do not and cannot in any way influence this Tribunal and as the Tribunal is an independent entity and is proceeding with this case independently and without any influence from any quarter, this point cannot come in aid of the defence. Mr.Razzak then submitted that in 61 counts mentioned in the formal charge, no prima facie case is made out. We have gone through the different counts and cannot find that the submission of Mr. Abdur Razzak possesses any substance. The allegation against the accused is that he has conspired with the occupation forces, planned, incited and was also complicit and responsible for the commission of crimes in 1971 by making speeches, giving directions, making press comments and by meeting with heads of different civilian and army administration and also he was personally involved in the crimes mentioned in section 3(2) of the Act and thus the submission that no prima facie case is available does not carry any weight.

With regard to retrospectivity of the offence, in the earliest orders passed in the case of Mr. Delwar Hossain Sayeedi and Salahuddin Qader Chowdhury, we discussed elaborately on this particular issue and concluded that the trial can be held for offences committed in 1971 under this Act. And now we do not intend to repeat those discussions in this order. As such Motiur Rahman Nizami can also be tried under this Act of 1973 for commission of offence in 1971. The word individual or group of individuals were included in 2OO9. We determined in the case of Salahuddin Qader Chowdhury that if a person can be tried for the offence committed 1n 1971. by the Act of 1973 then he can also be tried for the offence committed in 1971 by the Act of 1973, amended in 2009. As such the question of retrospectivity does not arise here for the purpose of debarring the trial of Motiur Rahman Nizami under the Act Mr. Razzak has further placed some reported decisions of our national courts as well as from the foreign jurisdiction in support of his submissions. Those decisions or similar decisions have been considered by this Tribunal earlier and we arrived at those findings in the case of Delwar Hossain Sayedee and Salahuddin Qader Chowdhury. Moreover, we have observed that if after taking of evidence we find that it requires reconsideration of all these findings, then, we will consider them. We have already found in the two earlier cases that the definitions of the crimes in this Act are quite clear and complete without any ambiguity. The crimes under the Act are adequate in all respect and therefore it is not necessary to visit with recent notions developed by the statutes of various international Tribunals. As regards nexus between armed conflict and crimes against humanity, we are of the view that the notion of armed conflict with crimes against humanity is not required under the Act.

In view of the above discussion, we are of the opinion that the discharge petition filed by the accused Motiur Rahman Nizami bears no merit in the eye of law and thus is liable to be rejected. We have perused the formal charge, other documeents and statements of witnesses upon which the prosecution intends to rely upon and considered the submissions made by both the sides on those materials. We are of the opinion that there are sufficient grounds to presume that the accused Motiur Rahman Nizami has committed offences under section 3(2), 4(1) and 4(2) of the Act and as we find that there is prima facie case against the accused, charges will be framed against him in the following manner: