Today the Tribunal heard matters in the following cases:

1. Chief Prosecutor vs. Gholam Azam: Prosecution Closing Arguments (Accused Not Present)
2. Chief Prosecutor vs. Mubarak Hossain (Accused Not Present)

In the Gholam Azam case the Tribunal heard the Prosecution’s closing arguments for the 6^th consecutive day. Prosecutor Sultan Mahmud Simon submitted arguments in support of Charge 3 (incitement) from counts 26 to 28 and Charge 4 (complicity) for counts 1 through 13. Thereafter, Tribunal adjourned the proceedings until February 26, 2013.

The Prosecution submitted the Formal Charges against Mubarak Hossain but the matter was not argued or presented in open court.

Chief Prosecutor vs. Gholam Azam
Charge No 3:
Under the third charge Gholam Azam is accused of the crime of incitement under Section 3(2)(f) of the ICT Act. Charge 3 alleges 28 separate incidents of incitement. Today Prosecution addressed incidents 26-28.

The Prosecution alleges that as the Amir (chief) of Jamaat-e-Islami, Gholam Azam issued statements and gave speeches inciting the activists of Jamaat-e-Islami and the Peace (Shanti) Committee to destroy Hindus, supporters of the Awami League, and in essence all Bengalis who supported independence. Through these statements and speeches he is also accused of inciting such activists to assist the Pakistani Army in all possible ways and of urging the Pakistani Government to take severe measures against supporters of independence.

Regarding incidents 26 to 28, Prosecutor Simon submitted that Gholam Azam incited people to oppose independence. He asserted that at the time of independence Jamaat was the only political party who had control over the Pakistani government. Simon submitted that Gholam Azam invited Pakistan to attack after India entered East Pakistan. He alleged that in March of 1971 Gholam Azam stated that the activities of ‘miscreants’ were under control. Later Gholam Azam urged to the Pakistani government to increase the number of Razakar members (Exhibit-97: the Daily Ittefaq dated 2 December 1971. The Prosecution also stated that Gholam Azam had a 70 minute meeting with President Eahiya Khan, where Gholam Azam stated that the Razakars were not enough to resist the “miscreants.” Simon described these activities of Gholam Azam as incitement and argued that Gholam Azam was the Chief of East Pakistan Jamaat-e-Islami and his party members were the ministers of the Pakistan cabinet.

Regarding the mens rea (mental state) of Gholam Azam, Simon submitted that he was the Chief of East Pakistan Jamaat-e-Islami, member of Peace Committee and a student of political science. His leadership role gave him knowledge of what would happen as a result of his incitement.

Justice Jahangir Hossain interjected that Defense claimed that Gholam Azam was a political leader and his activities were for the unity of Pakistan. Simon stated that the independence movement was internationally recognized. He further said that the people of East Pakistan were fighting for self-determination and that the pro-independence movement was the majority whereas Gholam Azam was supporting the minority who was against independence. Simon said that in the election of 1970 Jamaat-e-Islami received on 15 lakh votes (1.5 million) whereas the Awami League received millions of votes. Simon said that Jamaat was committed crimes and took up arms against freedom fighters. Justice Jahangir further then asked how the Prosecution responded to the Defense’s claim that the PDP and Muslim League also supported Pakistan at the time of independence. Simon responded that at that time Jammat was the largest political party who supported Pakistan whereas PDP and Muslim League were small in number.

Charge 4:
Under Charge 4 Gholam Azam is accused of 23 incidents of complicity in the commission of crimes against humanity under section 3(2)(h) of the ICT Act 1973. In the Charge Framing Order the Prosecution alleges that on 4 April 1971 as a part of a 12 member team Gholam Azam met with Lt. General Tikka Khan, the Chief Martial Law Administrator of the ‘Kha’ zone of occupied Bangladesh, at Governor House of Dhaka. The meeting took place just after the ‘Operation Searchlight’ on March 25, 1971 and during it Gholam Azam assured Tikka Khan of his full co-operation. On 9 April 1971 Gholam Azam allegedly held the third highest position in the Peace (Shanti) Committee.

The Prosecution alleged that goal of the Peace Committee was to assist the Pakistani Army in conducting attacks on civilians of Bangladesh. As a leader of Jamaat-e-Islami, Gholam Azam gave several speeches where he praised Pakistani Army and promised to give them full assistance and stated that Pakistani Army had served the country at a moment of crisis. It was alleged that Gholam Azam justified the conduct of the Pakistani Army by saying there is no other way to save the country from separating without the intervention of the Pakistani Army.

Simon cited to the  Akayesu case from the International Crimes Tribunal for Rwanda as a precedent for liability where a person with command responsibility fails to prevent the commission of a crime. [The Prosecution did not specify what court document or judgment they were citing. Presumably they are referencing the 1998 Judgment of the Akayesu case in which the ICTR held that civilians may also be liable for war crimes on the basis of command responsibility.] The Prosecution further argued that Gholam Azam is liable by aiding and abetting in the commission of war crimes. Simon referred to the reports published in different newspapers such as the Daily Azad of 5 April 1971(Exhibit-33); the Daily Azad dated 6 April 1971(Exhibit-34); the Daily Pubrbo Desh dated 6 April 71(Exhibit-99); and a photo published in the Daily Pakistan dated 6 April 1971(Exhibit-52).

Simon argued that Gholam Azam’s presence in the meeting with Tikka Khan just after the Operation Searchlight on March 25 indicated his support. Simon further argued that Gholam Azam gave his full co-operation to Pakistan even though he was aware of and had personally seen the atrocities committed by Pakistani occupying forces on March 26 (Exhibit-H, ‘Jibone Ja Dekhlam’). Simon submitted that Gholam Azam met with Tikka Khan and formed Nagorik Peace Committee.  He was one of 140 members of Peace Committee. Prosecutor Simon cited several exhibits in support of his arguments: Exhibit-35, the Daily Azad dated 7 April 71; Exhibit-100, the Daily Purbo Desh dated 7 April 1971; Exhibit-53, the Daily Pakistan dated 7 April 1971; Exhibit-37 the Daily Azad dated 11 April 1971; Exhibit-101 the Daily Purbo Desh dated 11 April 1971.

Simon submitted that the name of the Nagorik Peace committee was changed by Kendrio (Central) Peace Committee as part of a strategy to spread the committee all over the East Pakistan. He futher stated that a 21 member executive committee was formed to assist the Pakistani army and that Gholam Azam was the 3^rd highest ranking person in that committee. In support of his argument he referred Fortnightly Reports (Exhibit-479); Exhibit-57 the Daily Pakistan dated 16 April 1971 and Exhibit: 41 the Daily Azad dated 17 April 1971.

Simon submitted that Gholam Azam praised the Pakistani army in a meeting held in Kushtia for preserving the unity of Pakistan (Exhibit- 169, the Daily Poygam dated 22 May 1971). Simon submitted that on June 18, 1971 in the Lahore airport Gholam Azam stated that it was not the proper time to hand over power to the East Pakistan as there was no National Council. He further questioned to whom power would be given as it had been declared illegal. Allegedly Gholam Azam alsosaid that he was going to present some recommendations to the President, but refused to disclose the content of the recommendations to the media. Simon argued that this indicates Gholam Azam’s involvement in developing strategy against the independence movement. Simon referred to Exhibit-103, the Daily Purbo Desh dated 14 April 1971; Exhibit-42, the Daily Azad dated 19 June 1971; Exhibit-77, the Daily Ittefaq dated 19 June 1971; and Exhibit-106, the Daily Purbo Desh dated 19 June 1971.

Simon submitted that Gholam Azam urged the Pakistan government to supply arms to the supporters of a unified Pakistan so that they could resist the pro-independence forces. He referred to Exhibit-4, the Daily Shangram dated 20 June 1971; Exhibit-62, the Daily Pakistan dated 21-06-1971; Exhibit-83, the Daily Ittefaq dated 22 August 1971; and Exhibit-43, the Daily Azad dated 21 June 1971. Simon submitted that Gholam Azam praised and justified the action taken by Pakistan government against the independence movement by saying that there was no alternative other than the intervention of the Pakistani Army. He cited to Exhibit-51, the Daily Shangram dated 22 June 1971; Exhibit-63, the Daily Pakistan dated 22 June 1971; Exhibit-44, the Daily Azad dated 22 June 1971.

Regarding the actus reas [the incriminating act] Simon submitted that Gholam Azam committed complicity and aiding and abetting by procurement and instigation. Simon reiterated that Gholam Azam was aware that he had command responsibility and knew of the massacre committed by the Pakistani army. Additionally he was a student of political science and therefore knew what would happen if he incited his followers to cooperate with Pakistan.