Thursday, October 13, 2011

21 Sept 2011: Charge framing challenged

At this hearing, the tribunal heard a defence application seeking the recall of the order of cognisance made by the tribunal on 14 July 2011, and also the defence application started arguing against the framing of charges (adjourned from 13 September).

Application for recall of the order of Cognizance
This was the second application made by the defence seeking application for the order of cognisance. The first one was on 18 August, and was rejected.

The application was argued by Tajul Islam. He explained that this application was praying for the re-call of the order dated 14 July 2011 passed by the tribunal which took cognizance for offencs alleged against Sayedee under the International Crimes (tribunals) Act, 1973.

He said, that although, the prosecution submitted the formal charge against the accused on 11 July 2011 it failed to submit statements made by 38 witnesses covering 61 pages. The tribunal therefore did not have all the documents and evidence before it at the time cognizance was taken by it on 14 July 2011. He said that this has seriously prejudiced the conduct of a fair trial.

He said that the relevant part of the order dated 14 July 2011 was as follows:
“Today is fixed for taking cognizance of offence in question. The sole accused has been produced in the tribunal. Along with the formal charge, the prosecution has also filed 3(three) DVD cassettes, containing formal charge, the investigation report, the documents and the evidence in support of the prosecution case for our perusal. After perusing those materials, we are of the view that the materials of offences are prima facie available regarding the offences under section 3(2) of the Act and they disclose a prima facie case for trial. So, cognizance of offences under section 3(2) of the International Crimes (tribunal) Act, 1973 is taken against accused Delwar Hossain Sayeedi alias Delu alias Della.”
He said that without being able to consider 38 witness statements, that had not been passed to it, the tribunal passed an order taking cognizance which was in violation of Rule 29(1) of the International Crimes (tribunals) Rules of Procedure, 2010 which states that “The tribunal shall take cognizance of an offence against any accused upon examination of the formal charge, the Investigation Report, the papers, documents and the evidence submitted by a Prosecutor in support thereof, if they disclose a prima facie case for trial of the accused.”

He said that as cognisance was given without the tribunal having seen these statements, the trial process will be highly prejudiced since the tribunal has taken cognizance on partial evidence.

He stated that in 7 of the counts, (namely Count nos 2, 10, 11, 14, 18, 19 and 24 of the Proposed Charge/Indictment), the prosecution has relied solely on the witness statements of witnesses contained in Volume 2. Moreover, it has also relied on these statements in relation to the other counts. As such he said the tribunal has no opportunity to consider important evidence at the time of taking cognizance and therefore that ‘the order taking cognizance was defective.’

He went onto say that in order to ensure a fair trial, the witness statements of all the witnesses are required to be considered by the tribunal at the time of taking cognizance and that therefore the order should be recalled

The tribunal chairman said, 'Look, taking cognizance is a judicial notice. If the tribunal thinks the formal charge is enough to take cognizance they can take their decision based on that. There is no question of considering any documents that were not provided. The provided documents were satisfactory to take cognizance of the offence.'

Tajul responded by saying, 'But, my lord, rule 29(1) doesn’t say anything like this. It provides that you have to take into account the documents, evidences and other papers.'

The tribunal chairman said, 'Yes, we know that. We made the rules.'

Islam responded by saying, 'Yes, of course, you made the rules and you have to abide by them. Rule 29(1) says, “... upon examination of the formal charge, the Investigation Report, the papers, documents and the evidence... ...” So everything has to be taken into account if you have to take cognizance of the offence, he said.

The chairman said, 'Mr Tajul, we have taken cognizance of the offence not based on the charge, not based on counts. We have taken cognizance of the offences according to section 3(2) of ICT act. Whatever was provided, we were satisfied and was of the view that cognizance can be taken.'

The defence lawyer said, 'My lord, the offences that you were taken into cognizance - those witness statements were not even provided. So, how can you take cognizance? Thirty eight witness statements were not even there!

He went on, 'My lord, I want to humbly submit that there was no scope of taking cognizance. As those statements were missing there can be no cognizance taken based on that point. We want to say that as cognizance of offence was taken on the offences that were not even there, there also can be charge framed on those offences.'

Haider Ali, the prosecutor then rose and said that cognizance is a ‘mental’ matter.

He also argued that, there is no scope to recall the order of taking cognizance under any law, and that though the witness bundle 2 was not submitted in paper, they has been submitted in the CDs. 'So, the cognizance was taken in the right way. There’s nothing to be misguided about,' he said.

Islam responded to this by saying that this tribunal is not guided by the criminal procedure code and that, the tribunal must apply rule 21(1) while taking cognizance. He also said that the tribunal has inherent power to recall the cognizance order for the interest of justice. He said, that the law says that each and everything has to taken into account if cognizance has to be taken. If the witness statements were missing while you were taking cognizance, the charge framed based on this can not be valid. 'The prosecution can’t just file a list of offences and without evidence you can not take cognizance. So any order passed on this point has to be recalled.'

Justice Justice ATM Fazle Kabir then passed the following order immediately:
"This is an application filed by the learned counsel for the Defence for recalling the order of taking cognizance of offence dated 14 July 2011 by this tribunal. Mr. Tajul Islam the learned counsel for the Defence took us through the submission and ubmits that the order of taking cognizance of offences was passed on 14 July 2011 by this tribunal but at that time the prosecution did not file statement of 38 witnesses before the tribunal. The learned advocate further submits that the tribunal did not get chance to go through the statements of 38 witnesses at the time of taking cognisance of offence and as a result the order of taking cognizance is defective and as such the defence is prejudiced. The learned advocate further submits since the order of taking cognizance was not based on all the documents which has resulted in prejudice to the defence. As such the order of taking cognizance may be kindly recalled in the interests of justice.

The learned prosecutor Mr. Haider Ali opposed the petition for recalling the cognizance matter and submits that as per rules they have submitted formal charge, all documents including the investigation reports along with a CD containing all statements of witnesses so the tribunal got all opportunities to go through documents before taking cognisance. The learned Prosecutor further submits that the order of taking cognizance has been made by the tribunal on the basis of formal charge and other documents and so question of recalling order of cognizance is liable to be rejected.

We have perused the order of taking cognizance dated 14 July 2011 and order of 18 August 2011, and the documents available before the tribunal and it appears that at the time of taking congnisance on 14.7.2011, formal charge along with other documents including statement of witnesses were available before the tribunal. This tribunal also considers CDs and DVDs filed by the prosecutor containing all the materials at time of taking cognisance. The order of taking cognizance is valid and already been appealed by defence and order of taking cognizance is based on mental decision of the judges. It can be quoted here that cognisance of of offences was taken on 14.7.2011 and after date and after that date the hearing on charge matter was completed by the prosecution. No defence wil make submission on charge matter. So bringing question in the midst of the charge matter his application for recalling order of congisance is misconceived and unheard of in trial procedure. We find no substance in recalling the order dated 14 July 2011 in middle of hearing the charge matter and and as such the application is rejected.’

Application against charge-framing, to discharge the accused
Tajul Islam then rose and read out rule 20 of the rules of procedure. This states that: 'At the time of submitting a formal charge in the form of a petition, it must contain the name and address of the accused person, witness, and the date, time and place of the occurrence.'

He said that the prosecution has submitted two volumes of witness statements but this information is not available on all the witness statements. He referred to the first page of witness one (I think) and said that the lack of information made in 'in violation of rule 20(1). It is hide and seek.'

The tribunal said, 'this is part of your arguments. We will consider the submission in the order. Your arguments will be disposed of when all arguments are disposed of.'

Islam then said that at that point his submission would then be 'infructuous'

He went on to say that 'It is incomplete. The documents are incomplete.

The tribunal chair then made a big point of writing the arguments down saying outloud at the same time, 'No address has been given in witness statements ...'

Tajul Islam then started to read out his written application. He said that on 4 September 2011, the prosecution submitted its proposed indictment along with a list of 68 witnesses in support of the prosecution’s case against the accused. He then set out reasons why the tribunal should issue an order directing for his discharge.

Requirements of framing of charges
Islam said that Article 14(3)(a) of the International Covenant for Civil and Political Rights (ICCPR) provides for the right to be informed of the charge: “To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him”.

Islam emphasised the words ‘promptly and in detail’, and said that this should include ‘time and place’

He said that in its General Comment No.32 the Human Rights Committee under the ICCPR stated that: “The specific requirements of subparagraph 3 (a) may be met by stating the charge either orally - if later confirmed in writing - or in writing, provided that the information indicates both the law and the alleged general facts on which the charge is based”. Islam emphasised, ‘both law and facts’

He added that the Pre-Trial Chamber at the International Criminal Court has held that the document containing the charges must include the full name of the person and any other relevant identifying information; a statement of the facts; including the time and place of the alleged crimes, which provides a sufficient legal and factual basis to bring the person or persons to trial. Including relevant facts for the exercise of jurisdiction by the Court; a legal characterization of the facts to accord both with the crimes and the precise form of participation He refered to the case of Prosecutor v. Jean-Pierre Bemba Gombo, decision on 15 June 2009, para. 208.)

At around this time Islam wanted to submit the supporting materials. The tribunal chairman said that he would take a look at those later and consider those supporting materials after Islam had placed the application.

Islam then went on that the international requirements also conforms to the standard practice in domestic criminal proceedings as provided for in section 221, 222 and 223 of the Code of Criminal Procedure. In particular section 221(5) provides that when a charge is made, it is the 'equivalent to a statement that every legal condition required by law to constitute the offence charge was fulfilled in the particular case' and section 222 of the Code provides that particulars as to time, place and person must be stated in the charge.

Islam said that this is also the procedure provided for in section 16 of the International Crimes (tribunal) Act 1973 as amended 2009 which stated that: “Every charge against an accused person shall state- a) the name and particulars of the accused person; b) the crime of which the accused person is charged; c) such particulars of the alleged crime as are reasonably sufficient to give the accused person notice of the matter with which he is charged .”

He said that this is supported by Rule 20 (1) of the Rules of Procedure which provides: “At the time of submitting a formal charge in the form of a petition, it must contain the name and address of the accused person, witness, and the date, time and place of the occurrence”.

Islam said at the time of charge framing, the alleged ‘crimes are not defined, the elements of the crime are not defined. the circumstances are vague’. He said the ‘particulars are not there. The time of the occurrence is not there. The names of the victims are not there.’ He said that if these things are absent, the case cannot be charged.

He went onto say that therefore under section 16 of the 1973 Act, the purpose of the framing of the charges is to characterize the alleged facts in accordance with the legal elements of a crime so as to provide the accused with the opportunity to raise his defence.

Islam said that there is ‘no contradiction’ between local and international law. He finished this section by saying that ‘it is respectfully submitted that the charges cannot be framed as they provide and rely on both an insufficient legal basis and contain insufficient factual information.’

Challenges to the Indictment: Insufficient legal basis: Islam then said that the principle of nullum crimen sine lege [no crime without law] is enshrined in Article 15 (1) ICCPR: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby”.

Islam said that the right provided for in Article 15(1) ICCPR also provides for the right to legal certainty whereby all crimes are to be adequately detailed in law. It prohibits the prosecution and punishment under vague laws that do not clearly proscribe the conduct for which one has been punished. He refered to concluding observations of the Human Rights Committee Portugal in 1999 where the Human Rights Committee stated its concern over the “creation of vague and insufficiently defined (or ‘abstract’) offence”.

The lawyer said that on 6 September 2000 Bangladesh acceded to the ICCPR and in doing so became bound by the rights and obligations established by the ICCPR and its executive monitoring body, the HRC. He argued that under Article 2(1) of the ICCPR: “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,” and that according to the HRC, the ICCPR requires its “effective precedence over any inconsistent legislative act”.

He said that this was consistent with the overarching pacta sunt servanda principle of the Vienna Convention on the Law of Treaties , namely that treaty based obligations must be complied with in good faith. Article 26 of the Vienna convention provides that: “Every treaty in force is binding upon the parties to it and must be performed in good faith”. Islam then quoted from article 25 of the constitution which states that the state will ‘respect international law’.

The tribunal chairman then said ‘does respect mean binding? It is only persuasive’ Justice Zahir then made a point that this principle should also apply to the United States but they do not abide by international law.

Islam went on to say that article 27 of the Vienna convention provides: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” He added that it is widely known that the provisions of Vienna treaty reflect customary international law and are applicable to all states.

He pointed out that in a letter to the Permanent Missions of all Member States to the United Nations dated 12 April 2006, the Government of Bangladesh voluntary pledged to honour “Bangladesh’s deep commitment to the promotion and protection of human rights of all its citizens” and highlighted “Bangladesh’s adherence to all major human rights instruments”.

He stated that the principle of legal certainty is a non-derogable right and fundamental part of the rule of law as evidenced by the introduction of the ICC “Elements of Crimes” which complements the ICC Rome Statute. At the Rome Conference, it was recognised that there was “a need to define crimes with the clarity, precision and specificity that many jurisdictions require for criminal law” and that “it was of the upmost importance to define the constituent elements of those crimes in a precise manner, in view of the cardinal importance, inter alia, of the principle of nullum crimen sine lege”

He argued that the ICC “Elements of Crimes” illustrates the current required practice for courts and tribunals concerned with international crimes to detail the composite elements of the crimes. That although the events in question occurred in 1971, proceedings before this tribunal are taking place in 2011 and therefore should adhere to this current practice.

On questioning by the tribunal chairman, Islam said that there was ‘no contradiction’ between saying that the appropriate procedure should be the current procedure, but the offences that apply should be those that existed in 1971. There is ‘no inconsistency’ he said. -

The lawyer argued that the constituent elements of a crime are essentially the required ingredients that need to be met with by the alleged facts in order to establish that a crime has been committed and that without such elements, the prosecution are unable to prove beyond a reasonable doubt that a crime has been committed nor can the defence challenge the case made against it.

He said that the difficulty faced by the lack of definition of crimes listed under section 3 (2) of the 1973 Act is evident within the proposed indictment. He then went through the different offences:

Crimes against Humanity: He said that the prosecution had submitted that the crimes within the jurisdiction of this tribunal were internationally recognised and that no conflict remained between 1973 Act and international laws.

Furthermore, it noted that the definitions within section 3(2) of the 1973 Act were all present in the Bangladesh Penal Code.

He said that within its proposed indictment the prosecution does attempt to provide some legal elements within the charges. This is illustrated by the inclusion of the phrase “widespread and systematic attack” in paragraph 6 of the prosecution’s petition for formal charge disclosed to the defence on 27 July 2011.

He said that during the hearing on 4 September 2011, Justice Jahir did enquire as to whether an attack must be widespread or systematic in order to constitute a crime against humanity and that the tribunal was of the opinion that although the widespread or systematic element was a component of crimes against humanity within the Rome Statute, it was not an element within the Statute for the International Criminal tribunal for the former Yugoslavia.

He said that the prosecution submitted that this point was for the discretion of this tribunal, but that the defence submitted that currently the Bangladesh Penal Code cannot be used to provide definition of crimes within section 3 (2) of the Act as section 19 (1) of the Act expressly states that the tribunal is not bound by any technical rules of evidence thus removing the use of the Criminal Evidence Act and the Criminal Procedure Act. The tribunal is therefore not entitled under the provisions of the Act to consider elements contained within the domestic criminal procedure rules.

He went onto say that the area of international criminal law is a complex field accompanied by a wealth of jurisprudence. For example, although the statute for the ICTY does not provide for a widespread and systematic element within its definition of crimes against humanity in Article 5 the jurisprudence of the court differs and held that the ICTY Appeals Chamber in Prosecutor v. Dusko Tadic held that:
“The Appeals Chamber agrees with the prosecution that there is nothing in Article 5 to suggest that it contains a requirement that crimes against humanity cannot be committed for purely personal motives. The Appeals Chamber agrees that it may be inferred from the words “directed against any civilian population” in Article 5 of the Statute that the acts of the accused must comprise part of a pattern of widespread or systematic crimes directed against a civilian population and that the accused must have known that his acts fit into such a pattern. There is nothing in the Statute, however, which mandates the imposition of a further condition that the acts in question must not be committed for purely personal reasons, except to the extent that this condition is a consequence or a re-statement of the other two conditions mentioned” (IT-94-1-A, Appeals Chamber Judgment, 15 July 1999, para. 248)
Islam then emphasised that although the wording of the ICTY law does not include ‘widespread and systematic’, the caselaw states that this element is needed.

He said that the complexity of the definitions of crimes is furthered by the fact that this tribunal has jurisdiction over events that occurred in 1971. That Article 15 (2) ICCPR provides for the only exception to the nullum crimen sine lege principle under Article 15 (1) ICCPR: “Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations)”.

He said that as a result the applicable law in these proceedings is customary international law as it stood in 1971 at the time the alleged events in question occurred.

He then said, that applying the Charter of the International Military tribunal, London (“Nuremberg Charter”), on which the 1973 Act was originally based, under customary international law in 1945 a number of crimes listed in section 3 (2) of the Act were only applicable in non-international armed conflicts, namely crimes against humanity, crimes against peace, war crimes and violations of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949.

He said that this was illustrated with the definition of crimes against humanity. Under Article 6(c) of the Nuremberg Charter, crimes against humanity in 1945 was defined as: “Namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political or racial grounds in execution of or in connection with any crime within the jurisdiction of the tribunal, whether or not in violation of the domestic law of the country where perpetrated. Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any person in execution of such plan”.

He said that the term “in execution of or in connection with any crime within the jurisdiction of the tribunal” indicates that a nexus of an international armed conflict is required as the other two crimes within the jurisdiction of both International Military tribunal’s were war crimes and crimes against peace, both of which were de facto linked to international armed conflicts as discussed below.

He then went onto say that the definition of crimes against humanity under section 3 (2) (a) of the Act is largely based on the definitions under Article 6 (c) Nuremberg Charter with the exception that it excludes the words: “in execution of or in connection with any crime within the jurisdiction of the tribunal” thus removing the required nexus of an international armed conflict. He added that the required nexus between crimes against humanity and international armed conflicts remained customary international law even up until 1993 with the creation of the ICTY.

He then said that as previously held by the tribunal, the conflict in Bangladesh in 1971 is not classified as an international armed conflict between two sovereign states and herefore the acts alleged to have occurred in 1971 cannot be classed as crimes against humanity. 'To do so would amount to prosecuting an individual for an act that was not criminal according to customary international law in 1971. This would be in breach of the principle of legality under Article 15 (1) ICCPR.'

He then however went onto argue that the complexity of this field of law is further evidenced by the approach taken by the Extraordinary Chamber of the Courts of Cambodia which, similarly to the ICT, is a court in operation today and exercising jurisdiction over crimes committed between 1975 and 1979. The ECCC Trial Chamber, he said, has determined that there was no nexus requirement of an international armed conflict in the definition of crimes against humanity under customary international law in 1975:
“In particular, the Chamber notes that Article 5 of the ECCC Law does not require a link between crimes against humanity and armed conflict. Although Article 6(c) of the Nuremberg Charter required a nexus between crimes against humanity and armed conflict, such a nexus was not included in the 1945 Control Council Law No. 10, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the 1954 International Law Commission’s Draft Code of Offenses against the Peace and Security of Mankind, the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, and the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid. The notion of armed conflict also does not form part of the current-day customary definition of crimes against humanity. International tribunals that have subsequently considered the issue have also found that the notion of crimes against humanity existed independently from that of armed conflict under customary international law prior to 1975. The ICTY Appeals Chamber has stated that the armed conflict requirement in Article 6(c) of the Nuremberg Charter was a jurisdictional issue, thus implying that it was not required under customary international law even in 1945. The Grand Chamber of the European Court of Human Rights has noted that, while the nexus with armed conflict initially formed part of the customary definition of crimes against humanity, this nexus may no longer have been relevant as of 1956. The Group of Experts for Cambodia appointed pursuant to General Assembly Resolution 52/135 similarly concluded that “[t]he bond between crimes against humanity and armed conflict appears to have been severed by 1975.” The Chamber therefore considers that the lack of any nexus with armed conflict in Article 5 of the ECCC Law comports with the customary definition of crimes against humanity during the 1975 to 1979 period (footnotes omitted)”. (Prosecutor v. Kaing Guec Eav (Duch), No. 001-18-07-2007/ECCC/TC, Trial Chamber Judgment, 26 July 2010, paras. 291-292.)

He then went onto say that whilst removing the nexus requirement in the definition of crimes against humanity, the ECCC did find that the following constituent elements did exist within the definition of crimes against humanity under general customary law in the 1970’s:
“Offences listed in Article 5 of the ECCC Law can constitute crimes against humanity only if the following chapeau prerequisites are established to the required standard: (i) there must be an attack; (ii) it must be widespread or systematic; (iii) it must be directed against any civilian population; (iv) it must be on national, political, ethnical, racial or religious grounds; (v) there must be a nexus between the acts of the accused and the attack; and (vi) the accused must have the requisite knowledge”. (Prosecutor v. Kaing Guec Eav (Duch), No. 001-18-07-2007/ECCC/TC, Trial Chamber Judgment, 26 July 2010, para. 297).

He said that for these reasons, 'it is respectfully submitted that this tribunal should expressly articulate its position in this area in order to provide specificity and precision to the crimes listed under section 3 (2) of the 1973 Act. Both the parties and this tribunal must know the framework within which any conviction or acquittal will be based upon. It is respectfully submitted that clear definitions and elements of crimes would establish a fair trial as well as prevent future instances of confusion as evidenced in the hearing of 4 September 2011. It is requested that this tribunal should provide detailed definitions of the crimes that are applicable in proceedings before it, taking into account both the removal of evidentiary rule under section 19 (1) of the Act and the retroactivity principles pursuant to Articles 15 (1) and (2) of ICCPR.'

Requisite knowledge: He said that an important constituent element of a crime is the requisite knowledge that must be proved by the prosecution in order to find an accused guilty of an offence and that the prosecution fails to indicate any level of intention on behalf of the accused within the proposed indictment or its submissions made on 4 September 2011. This in reference to the offences of crimes against humanity, genocide and the general allegation of abetment and complicity put forward by the prosecution, though he said that admittedly, the reason for this may be the fact that under the respective provisions of section 3(2)(a),(g) and (h) of the 1973 Act there are no constituent elements detailing the requisite knowledge.

He said that even where the offence under section 3(2) of the Act provides for the requisite knowledge of a crime, the prosecution has failed to include this in either its proposed indictment or its submission. For example, under section 3 (2) (c) of the Act, genocidal acts can only be proven if they have been “committed with an intent to destroy in whole or in part, a national, ethnic, racial, religious or political group”. That this is not specified by the prosecution under paragraphs 26 to 30 of the proposed indictment.

He said that ‘intention is not mentioned. It is completely absent’

He then read out the paragraphs from the indictment:
On 4th May 1971, between 11 A.M and 5:30/6 P.M., (a) Shot and killed 20 unarmed, innocent Bengali gathered at the Middle Masimpur bus stand. (b) On the above mentioned date and time, attacked and killed 13 innocent, unarmed Hindu people including, Bijoy Krishno Mistry, Upendronath, Jogendronath Mistry, Shurendronath Mistry, Motilal Mistry, Jogesshor Mondol, Shuren Mondol and others. (c) On the above mentioned date and time, shot and killed Debedronath Mondol , Khogendro Nath, Pulin Bihari, Mukondo bala at back of LGED adjacent to the local Dhopabari (laundry). 27.

On 5th may 1971, approximately between 2 P.M and 6 P.M. captured from different places in Pirojpur and then shot and killed the SDPO of Pirojpur- Foizur Rahman Ahmed, the SDO- Md. Abdur Razzak, Deputy Magistrate – Saif Mizanur Rahman and others at the river bank of Boleshor river.

One day Between 23rd May and 31st May of 1971, captured and brought the brother of Bimol Hawlader and his father to the Kuriana High School camp and captured and brought another 2500/3000 unarmed and innocent Bengali people to Korina Guava garden and therein shot and killed them.

One day between 25th May and 31st July, attacked Hoglabunia village and from therein captured 10 people including Toroni Sikder, her son Nirmol Sikder, Shamkanto Sikder, Banikanto Sikder, Horolal Kormokar, son of Lalu Halder of Maitbhangar, Prokash Sikder , Nirmol Sikder, brother in law of Nirmol Sikder and others and handed over to the Pakistan army camp at Pirojpur and thereafter killed or instructed to kill the said people and disposed of their bodies at the river; 30. One day between 4th May and 16th December of 1971, captured 14 hindu people including Haralal Malaker, Aurokumar Mirza, Toroni Kanto Sikder, Nondo Kumar Sikder and others and handed over to the Pakistan army camp at Pirojpur and thereafter killed the said people and disposed of their bodies at the river;

He said that at the hearing on 4 September 2011, Justice Jahir enquired as to why killings could be listed as crimes against humanity and then also as genocide. It is respectfully submitted that this inquisition arose from the omitted requisite knowledge components within each charge and the general lack of elements of each crime as submitted above.

One of the judges then said, ‘No elements of the crimes are in the act. That is why there is a problem.’

At around this point Sayedee then was allowed to go outside to the toilet. Suddenly the prosecutor, Zead-al-Malum got up and accused Sayedee of making a mobile phone call. Tajul checked with the lawyer who accompanied (Sayedee and the police) who denied it. There was then a big commotion about alleged remarks made by the prosecutor against Islam. The tribunal pacified the situation by saying that there was a misunderstanding and that he would subsequently interview the police and see what happened.

Modes of Liability: Islam said that under paragraph 1 of the proposed indictment, the accused is accused of establishing Razakar Force camps at Parerhaat Rajlakkhi Girls School and the premises of Fakir Das located at Parerhaat Port. He then read this out:
‘From 3rd May 1971 to 16th December 1971, established Razakar camps at Parerhaat Rajlakkhi Girls School and the premises of Fakir Das, located at Parerhaat port, to commit murder, arson, rape and other inhuman torture and oppression against the Hindu community, in furtherance of a long term pre planned conspiracy to make the Bengali people an electorate minority.’
About this, he said, the prosecution has failed to indicate the relevant provision of the 1973 Act under which this activity can be classified as a crime, that in order to determine whether the facts accord to the crime, the prosecution must indicate the specific offence it is charging by reference to the relevant provision in of the 1973 Act as required by section 16 (1) of the 1973 Act.

He then reads out section 16(1) of the 1973 Act which states:
‘Every charge against and accused person shall state: - (a) the names and particulars of the accused person (b) the crimes of which the accused person is charged (c) such particulars of the accused crime as are reasonably sufficient to give the accused person notice of the matter with which he is charged.’
He went onto say that the accused is also charged with “abetment and complicity” under section 3(2)(g) and (h) of the 1973 Act at paragraph 30 of the proposed indictment, and stated that the formation of an auxiliary force, and the general allegation of abetment and complicity are, if anything, modes of liability of a crime and not crimes within themselves.

He said that furthermore, the necessary elements of what constitutes abetment or complicity are not defined under section 3(2)(g) and (h) of the 1973 Act and that without such elements it is difficult to determine the difference in the two types of participation. 'For example, using the standard definitions found in the Oxford Dictionary, abetment (encouraging or assisting someone in his wrongdoing) is naturally a form of complicity (the fact or condition of being involved with others in an unlawful activity). The two modes of liability are not distinct from one another as abetment is seen as the “weakest form of complicity”. Without knowing the constituent elements of ‘abetment’ and ‘complicity’ there is no standard criteria against which the facts must be judged within.'

He said that throughout the indictment the prosecution alleges that the accused has “committed” a number of offences (Paragraphs 1, 5, 6, 8, 9, 10, 11, 12, 13, 19, 20, 21, 25, 30). 'However, the prosecution fails to specify whether the accused physically committed the acts himself or whether it was committed through his alleged participation and involvement with “Parerhaat Razakar Force”. If it is the latter, the prosecution have failed to develop the hierarchy, organisation and policy of this group and omitted any named individual members,' he said.

He argued for this reason the prosecution have failed to establish the level of involvement of the accused and in which manner he participated, assisted and planned the alleged offences.

Incorrect Classification: He pointed out that at the hearing on 4 September 2011, Justice Jahir enquired as to how the looting of two bronze plates of Hindu and Suren amounted to a crime against humanity, but that the prosecution submitted in reply that the amount of property looted was not a consideration to be taken into account and that this activity amounted to extermination and torture as a crimes against humanity.

A discussion then took place between tribunal and Islam about what amounted to torture, with Justice Jahir saying that ‘this could result in pain, it could amount to torture.’ Jahir also enquired why his name was referred to in several places of the discharge application and that he would have to stop making comments or saying anything if he was further referred in any future application. He said that he wanted to discus different aspects of the law as it was new.

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

He argued that the same trial Chamber also determined that under customary international law in the 1970’s torture was defined in the following way:
“The crime of torture is proscribed and defined by numerous international instruments, including the 1975 United Nations General Assembly Declaration on Torture, adopted by consensus, and the 1984 Convention against Torture. The definition in the 1984 Convention against Torture, which closely mirrors that of the 1975 General Assembly Declaration, has been accepted by the ICTY as being declaratory of customary international law. The Chamber accordingly finds that this definition had in substance been accepted as customary by 1975. Torture comprises the infliction, by an act or omission, of severe pain or suffering, whether physical or mental”.

He then submitted that the crime of looting fails to meet the thresholds defined under the definitions of extermination or torture pursuant to customary international law in the 1970’s.

He then said that under paragraph 25 of the proposed indictment the prosecution alleges that the accused forcefully converted a number of individuals of the Hindu faith to Islam. That this is incorrectly classified as rape as a crime against humanity.

Chairman interrupted and said that this might be a printing mistake and would be corrected at the time of framing charge.

Islam argued that the incorrect classification of charges amounts to a violation of Article 14(3) of the ICCPR and section 16(1) of the Act as it fails to characterise the alleged facts in accordance with the correct legal basis and therefore it is respectfully submitted that they should be removed from the indictment.

The Chairman then adjourned the proceeding to 25th September 2011 Islam said that he wanted few more days for full preparation whilst the prosecutor Malum prayed that the proceeding should continue tomorrow.

The chairman confirmed that the charge hearing should continue on Sunday for full a day. He confirmed the Tajul Ialam would be allowed ample time to make full submission on the issue of framing charges.

Defence press briefing, Tajul Islam
Today, our first application was about recalling the cognizance order given by the tribunal. The ground of the application was, the volume no 2 of the documents, where there are 38 witness statements, was not provided to the court. But the rules of procedure clearly state that before taking cognizance every documents have to be submitted including investigation report, formal charge, evidence etc. If the tribunal, after considering everything, thinks that there is a prima facie case, they can take cognizance. But the witness statements were provided after one month from when the cognizance was taken. The things that were not in front of the court at that time, obviously there was no chance of considering those by the court at that time. So, the cognizance taken based on those reports was not properly taken and as the cognizance was not properly taken, the next procedure i.e. charge hearing can’t also be proper/appropriate as long as the cognizance hearing takes place properly again.

The court said that they were happy/satisfied/convinced with whatever they had before them at that time. We said that the law says that they have to consider everything, and thus it doesn’t fulfil the law requirement. And we also said that the documents provided later could’ve contained some things that contradict the other charges. But the court rejected our order saying that they have seen the CD documents. We said that the law says that everything, soft copy and hard copy has to be provided. So without that how the cognizance was taken? If the cognizance taking is not appropriate, then other procedures that follow will not be appropriate too.

Journo: What did you present in your argument today for the charge hearing?

The first thing that we submitted is that the crimes, for which the accused is being charged, should be defined and clear. But we have seen that the law doesn’t define them clearly. As long as we don’t know what is “crimes against humanity”, what is genocide, there can’t be any charge. We presented international examples to support that. Secondly, the evidences and witness statements that they provided are also not clear. Some charges said, Mr Sayedee, between this and this period, killed many people. But which date, which time, killed who? They said, he killed 40 people. But there’s nothing definite. They have to say who was killed, how, when; this is the requirement of law. If the charges are not definite how am I going to argue against them? We can’t argue against something that is not definite. The elements of crimes also have to be defined; otherwise it would not be a fair trial. Stephen Rapp and international community also voiced the same concern.

The crimes are not defined in the law. We cited examples of Yugoslavia, where the crimes were not defined but the judges passed orders and defined them. The crimes should be defined and trial will go on after that.

The victims’ names have to be defined too. You all observed that the documents provided by the prosecution stated, the victims’ address will be provided later. But it is a necessary element. These serious loopholes and not fulfilling the law requirements will make the framing of charge totally unlawful and that is what we tried to say today.

Journo: What about the commotion regarding the accused talking on the mobile phone today?

The court has settled this already. We don’t want to say anything more. Mr Sayedee went out and the police were with him. The prosecution lawyers came in and alleged about this unfounded thing. That was a lie, completely baseless and incorrect. But the court has already settled this and said this can’t go in the media, so we are not saying anything more.

A couple of small points
1. In terms of cognisance, a lot depends on whether the tribunal read through the second volume of witness statements that were on the CD/DVD. It appears (unless I missed something) that the tribunal at this hearing at first did not say that they had read the second volume of statements on the CD. The chairman simply made a general point that they were satisfied with what they had read and took cognisance on that basis. It was only when the prosecutors reminded the tribunal that they had received the CDs with these statements on them, that the tribunal made the point that they had read the second volume of statements. (the defence was never given this CD so they cant confirm whether or not these statements were in fact on the CDs) However it is all rather confused to know exactly what happened here so no clear conclusions can be made - though of course the tribunal does say clearly that they read them.

2. The defence position on crimes against humanity appears a bit confused to me. In their arguments on cognisance on 18 August, the defence argued that a condition for the crime against humanity in 1971 was an international conflict. In this hearing, they seemed to acknowledge that at least in 1974, an internaitonal conflict was no longer a condition. Is this a contradiction? It may be. Or it may be that the defence are saying that in 1974 the Cambodian tribunal made a decision about whether a crime against humanity could be committed without an international conflict, and now the Bangladesh tribunal must do the same in relation to 1971.

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