Today the Tribunal heard matters in the following cases:

1. Chief Prosecutor vs. Delwar Hossain Sayedee – Two Defense Applications (Accused Not Present)
2. Chief Prosecutor vs. Gholam Azam – Defense Closing Arguments on Civilian Superior Command Responsibility (Accused not Present)

On March 20, 2013 Defense counsel for Delwar Hossain Sayedee submitted two applications. The first was a request for bail in regard to two cases filed against Sayedee in the Pirojpur Sadar Police Station Case No 9(8)09 and Zianagar Police Station Case No 4(9)09. The second application requested certified or authenticated copies of the FIR, Charge Sheet, Statement of witnesses and other relevant documents related to these cases in Pirojpur Sadar Police Station and Zianogor Police Station. The Tribunal fixed 21 March 2013 to hear the applications.

In the Gholam Azam case the Tribunal heard Defense counsel Imran Siddiq’s response to the Prosecution’s submissions on the issue of whether a civilian can have superior command responsibility. Prosecutor Turin Afroz submitted arguments for the Prosecution on 18 March 2013.

Chief Prosecutor vs. Gholam Azam:
The Defense argued that the doctrine of command responsibility as described under Section 4(2) of the ICT Act 1973 is not applicable to civilians.

Interpretation of Law and Intent of Legislation
In support of the Defense’s position, Imran Siddiq argued that the legislative intent behind the passage of the ICT Act 1973 and its subsequent amendments showed that command responsibility was only applicable to military or auxiliary forces. He submitted that when the section 3(1) of the ICT Act 1973 was amended in 2009 to add “individual or a group of individuals” to the court’s jurisdiction, Parliament omitted to amend section 4(2) which codifies the doctrine of superior responsibility or command responsibility. Therefore the Defense argued the Prosecution cannot rely on section 4(2) to claim that an “individual or group of individuals” are liable due to command responsibility. Imran Siddiq argued that the text of Section 4(2) clearly limits the doctrine’s application to commanders and superior officers of military and auxiliary forces, showing that it is not applicable to civilians. He emphasized that the use of the terms ‘commander or superior officer’ and ‘persons under his command or his subordinates’ in Section 4(2) support the Defense’s position. Additionally, the Defense cited to Section 134 and 135 of the Penal Code, the Army Act of 1952, Air Force Act of 1953, Navy Ordinance of 1961, Bangladesh Rifles Order of 1972, Battalion Ansar Act of 1995 and Armed Battalions Ordinance of 1976. Imran Siddiq noted that none of these Acts have used the term of “superior officer” or “commander” to describe the authority of a political party leader or a civilian.

The Defense noted that Gholam Azam was the Ameer (chief) of East Pakistan Jamaat-e-Islami in 1971 and was a member of the Central Peace Committee. As such, he was a political leader and cannot be termed a superior officer or commander of the Central Peace Committee or of Jamaat-e-Islami. He added that Prosecution additionally had been unable produce any documentary evidence or any Prosecution witnesses describing Gholam Azam as a superior officer or commander of the Central Peace Committee or Jamaat-e-Islami. The Defense argued that the Prosecution was mistaken in relying on the word “supervise” in the ICT Act as evidence that civilian superior responsibility was intended by the Act. He referred to numerous examples of “supervise” being used to refer to superior/command responsibility in military or para-military settings. In particular he noted cases at the International Criminal Tribunal for the former Yugoslavia (ICTY), including Celebici Trial Judgment, para 611,612,622 and 1250; Kordic and Cerkez Trial Judgment, para. 369 and 410; Kvocka Trial Judgment, para 361 and 367; Krnojelac Trial Judgment, para 530; and the International Criminal Tribunal for Rwanda (ICTR) case Bagosora Trial Judgment, para 593, 907 and 971.

The Defense acknowledged that the Prosecution had cited to cases in the ICTY, ICTR and the Special Court of Sierra Leone that show that the doctrine of command responsibility applies to political leaders and civilians. These cases are: ICTY cases: Delalic Judgment (Appeals Chamber, 20 February 2001, para 195-6), Aleksovski (Appeal Chamber, 24 March 2000, para 76), Baglishema (Appeals Judgement, 3^rd July 2002, para 51), Kajelijeli (Appeals Chamber, 23^rd May 2005, para 85), Kordic and Cerkez (Trial Chamber, 26 February 2001, para 415-6), Mucic (Trial Chamber, November 16, 1998, para 377-78); ICTR cases: Kayishema and Ruzindana (Trial Chamber), 21 May 1999, para 213-215, Musema (Trial Chamber, 27 January 2000, para 148) and Nahimana, Barayagwiza and Ngeze (Trial Chamber), December 3, 2003, para 976; and The Special Court of Sierra Leone: Brima (Case no. SCSL-04-16-T, 20 June 2007, para 790. However, the Defense distinguished the current case from these cases as the articles defining command responsibility for the ICTY, ICTR and Special Court for Sierra Leone use only the term “superior,” unlike the ICT Act of 1973 which clearly uses the terms “superior officer” and “commander” in defining who may be liable under the doctrine. Therefore the Defense argued there is no scope to rely on the decisions of the cases decided by the ICTY, ICTR or Special Court of Sierra Leone in support of the doctrine of command responsibility. The Defense further submitted that customary international law in 1971 did not allow for liability of civilians under a doctrine of command responsibility. There was no application of the doctrine to civilians in 1973 or before. If the Tribunal were to depart from the standard of customary international law as it stood in 1971 it would be a violation of the principle of nullum crimen sine lege, the principle of legality, which provides that there can be no crime and no punishment where there is not first a law defining the crime. Therefore, section 4(2) of the ICT Act 1973 may only be applicable for military commanders and military superior officers.

Defective Charge Framing Order
The Defense then argued that, even if the ICT Act of 1973 were amended to allow for civilian liability under the doctrine of command responsibility, Gholam Azam cannot be held liable for command responsibility as he was not charged under section 4(2) of the Act. Gholam Azam has only been charged for conspiracy, planning, incitement and complicity in Crimes against Humanity and Genocide.

The Defense submitted that in order to make Gholam Azam responsible for the offences committed by Razakars, Al-Badr, and Al-Shams forces under section 4(2) of the ICT Act, the Charge Framing Order must have plead that Gholam Azam was the superior leader of those forces and held a superior-subordinate relationship. The Prosecution would then have to show that the subordinates committed crimes under section 3(2) of the ICT Act and that Gholam Azam had effective control, meaning the power to prevent or punish the members of the Razakars, Al-Badr, Al-Shams for such crimes. They would also have to show that Gholam Azam failed or omitted to discharge his duty to maintain discipline or to control or supervise the actions of his subordinates. Finally, the Prosecution would have to show that Gholam Azam knew or had reason to know that the crimes would be committed or had been committed by his subordinates and that Gholam Azam failed to take the necessary steps to prevent his subordinates from committing such acts.

The Defense argued that first, the Charge Framing Order did not charge Gholam Azam under section 4(2) and additionally, has not been charged with the commission of any crime by auxiliary forces. Therefore, the charges do not contain these necessary elements required to convict Gholam Azam for superior command and responsibility. The Charge Framing Order did not specifically mention which subordinate had committed a particular crime under section 3(2) of the ICT Act and there is no specific allegation where Gholam Azam failed to take necessary steps to prevent the commission of such crimes. Imran submitted that absence of such specific facts in the Charge Framing Order renders it defective.

In support of his arguments he referred to a number of cases including ICTR cases:  Ntagerura, Bagambiki and Imanishimwe (Appeals Chamber), July 7, 2006, para 158; Muvunyi (Appeals Chamber), August 29, 2009, para 19; Nahimana, Barayagwiza and Ngeze (Appeals Chamber), November 28, 2007, para 323; Karera (Trial Chamber), December 7, 2007, para 563 for application of Article 6(3) of ICTR Statutes; ICTY cases: Blaskic (Trial Chamber), 3^rd March 2000, para 294 for application of Article 7(3) of ICTY Statutes.

The Tribunal then adjourned for lunch. At this point the Chairman of the Tribunal asked the Defense Counsel to submit their arguments as to whether, following the ICT Act of 1973, there is any defect in the Charge Framing Order. The Chairman also asked Mizanul Islam to complete his arguments for the Defense by tomorrow, March 21, 2013. After the completion of Mizanul Islam’s arguments Abdur Razzaq is scheduled to will submit arguments regarding Charges 1-4.

Element 1: Existence of a superior-subordinate relationship
After lunch Defense counsel Imran Siddiq argued that even if the ICT Act were amended and there were no defect in the Charge Faming Order, the Prosecution would have to prove 1) the existence of a superior-subordinate relationship between Gholam Azam and members of the Razakars, Al-Badr, and Al-Shams forces; 2) That the subordinates of Gholam Azam did in fact commit crimes under section 3(2); 3) that Gholam Azam knew or had reason to know that crimes would be or had been committed; 4) that Gholam Azam failed to fulfill his duty to control and supervise his subordinates and 5) that Gholam Azam failed to take the necessary and reasonable steps to prevent such crimes. The Defense cited ICTY case Kunarac, Kovac and Vukovic (Trial Chamber) February 22, 2001, para 395-6. Imran Siddiq also submitted that a superior is a person who has effective control over his subordinates, citing ICTY case Blaskic (Trial Chamber), March 3, 2000, para 335. He also argued that the superior-subordinate relationship indicates existence of a de jure or de facto hierarchical chain of authority where the accused has effective control over his subordinates, citing ICTR case Kamuhanda (Trial Chamber), January 22, 2004, para 604.

The Defense argued that simply holding a position is not sufficient to show effective control. The Prosecution will have to prove that Gholam Azam had the material ability to prevent and punish member of the Razakars, al-Badrs and Al-Shams for committing such crimes, that he had powers to issue orders or disciplinary action against them, or to submit reports to competent authorities in order to take disciplinary measures (Blaskic (Trial Chamber), March 3, 2000). The Defense argued that the head of the Razakar forces would be the individual with effective control over Razakar members. Imran Siddiq noted that Prosecution witness 2 testified that he could not say whether Gholam Azam had such power to punish or take disciplinary action. Additionally Prosecution witness 16, the Investigating Officer, testified that he did find the existence of such power during his investigation.

Justice Anwarul Haque interjected that Gholam Azam was a member of Central Peace Committee, and asked who would be liable for the crimes committed by the members of the Union level Peace Committee. Imran Siddiq replied that the relevant question is whether Gholam Azam had effective control over the union level Peace Committee. He submitted that the Union level Peace Committee was formed under the local administration and that Gholam Azam had no effective control over them. Common political position does not prove effective control. The Defense further submitted that a formal designation is not necessary to establish command responsibility (Celebici Appeal Judgment, Para 197 and para 306; Aleksovski (Trial Chamber) June 25, 1999, para 76.

The Defense submitted that no duty was imposed upon Gholam Azam. There was no hierarchical chain of authority showing his superior command status. The Prosecution has not produced any oral or documentary evidence showing that Gholam Azam was responsible for paying the salary or other costs of any members of the Peace Committee, Razakars, Al-Badrs, or Al-Shams forces. The Prosecution could not even show that Gholam Azam had powers to issue orders. The Defense also argued that Gholam Azam had no power over the Pakistani army. He submitted that Prosecution failed to prove the required mens rea – showing that Gholam Azam knew or had reason to know that the crimes were about to be committed or had been committed by his alleged subordinates. He concluded that Prosecution failed to prove superior-subordinate relationship between Gholam Azam and members of the Razakars, Al-Badrs, and Al-Shams forces.