Today the Tribunal heard matters in the following cases:

1. Chief Prosecutor vs. Gholam Azam – Defense Application and Closing Arguments

Today Defense counsel for Gholam Azam filed an application seeking the recall of yesterday’s order, citing the interest of justice. Yesterday, 2 April 2013, the Tribunal passed an order directing the Defense to conclude their Closing Arguments by 4 April 2013. The Defense argued that compelling them to conclude their Closing Arguments would seriously prejudice the Accused because they would be unable to adequately present the case.

The Defense requested an additional four days instead of the two currently allotted. Senior Defense counsel stated that he cannot make himself available on hartal days. He noted that the other courts of the country, from the magistrate level to the Supreme Court, do not convene on hartal days. Razzaq further stated that though he is supporter of a political party, he appears before the Tribunal solely as an advocate and has refrained from making any political statements over the last 3-4 years.

After making his submissions Tribunal 2 granted Razzaq permission to leave in order to appear before Tribunal 2.

Prosecutor Sultan Mahmud Simon opposed the prayer and submitted that the application should be rejected summarily.

Defense Closing Arguments
Defense counsel Imran Siddiq continued the submission of Closing Arguments on behalf of Gholam Azam. He argued regarding the legal requirements of the charge of conspiracy, planning and incitement.

Conspiracy to commit crimes against humanity
Imran Siddiq submitted that section 3(2)(a) of the ICT Act of 1973 does not describe the elements of the crime which the Prosecution must prove beyond reasonable doubt. Given the silence of the Statute on this matter, it is therefore necessary to look to Customary International Law in order to assess whether the Prosecution has sufficiently proved its case.

Imran stated that in order to convict the Accused of conspiracy to commit Crimes Against Humanity, the Prosecution must prove that i) there was an attack ii) the attack was widespread or systematic iii) the attack was directed against a civilian population iv) the attack was committed on national, political, ethical, racial or religious grounds and v) Gholam Azam acted with the knowledge of the attack. He cited to the ICTR case of Ntagerura (Trial Chamber), 25 February 2004, para 698.

The Defense argued that the alleged Crime Against Humanity must be committed as part of a widespread or systematic attack and not just a random act of violence. (Akayesu (ICTR Trial Chamber), September 2, 1998, paras 578-79). He submitted that “widespread” indicates the large scale nature of the attack and “systematic” refers to the organized nature of acts of violence. (Nahimana (ICTR Appeals Chamber) para 920). He submitted that “civilian population” is defined as people not taking any active part in hostilities. (Akaysesu (ICTR Trial Chamber, September 2, 1998 para 582). Regarding the required mental state, or mens rea, of the Accused, Imran submitted that he must have acted with knowledge of the broader context of the attack and knowledge that the act formed a part of the widespread and systematic attack against the civilian population. (Gacumbitsi (ICTR Appeals Chamber), July 7, 2006, para 86). The Defense noted that there is no parallel decision in international law regarding conspiracy to commit Crimes Against Humanity.

Conspiracy to Commit Genocide
On April 1, Abdur Razzaq submitted arguments regarding the mental state, or mens rea, required for the commission of conspiracy to commit genocide. Today Imran Siddiq continued these arguments.

The Defense described the actus reus of conspiracy to commit genocide as the formation of an agreement between two or more persons with the purpose of committing the crime of genocide (Nahimana, Barayagwiza and Ngeze, ICTY Appeals Chamber, 28 November 2007, para 894, 896). Imran submitted that the Prosecution must prove that there was an agreement between Gholam Azam and Tikka Khan to commit genocide. The Defense acknowledged that the existence of an agreement may be inferred based on evidence. However, they stated that the Prosecution has only produced evidence showing that Gholam Azam met with Tikka Khan, but failed to prove the agenda, discussion or decisions of said meetings. There is no evidence about the existence of any agreement. He argued that in the absence of any direct evidence it is very difficult to prove the alleged agreement based on circumstantial evidence. Additionally, the Defense submitted that where the Prosecution relies on circumstantial evidence to prove a particular fact, the finding of that fact must be the only reasonable inference based on the totality of the circumstances. In this case, the finding that there was an actual agreement between Gholam Azam and General Tikka Khan must be the only possible conclusion the Tribunal can make. (Seromba, ICTR Appeals Chamber, 12 March 2008, para 221, Nahimana, Barayagwiza and Ngeze, ICTR Appeals Chamber, 28 November 2007. Imran compared the Seromba case with the case of Gholam Azam and argued that Prosecution had failed to show the existence of any agreement to commit genocide.

The Defense further submitted that the action of the conspirators must be concerted or coordinated. (Nahimana, Barayagwiza and Ngeze, ICTR Appeals Chamber, 28 November 2007, para 896-97). The existence of an agreement to commit genocide may be inferred from the concerted conduct of the conspirators. The Defense argued that Gholam Azam denied meeting Tikka Khan separately on 6 April 1971. Additionally, Imran argued that the actions of Tikka Khan after the alleged meetings was not presented into evidence. In fact, the Defense alleged there is no documentary evidence and no witness testimony regarding the conduct and actions of the alleged conspirators after such meetings. Therefore Imran concluded the elements of the crime of conspiracy had not been proven not even on the balance of probabilities, let alone beyond a reasonable doubt.

At this stage Justice Anwarul Haque interjected to ask whether, if the Prosecution was able to prove that Gholam Azam committed conspiracy, planning, incitement or complicity, he would also be liable under the doctrine of Superior Command Responsibility. The Defense replied that superior responsibility is a separate offense and conspiracy, planning, incitement, and complicity are separate crimes.

Censorship
Shifting arguments to the issue of the reliability of documentary evidence, the Defense asserted that the Prosecution must prove beyond a reasonable doubt that the statements published in various newspaper articles now in evidence were the actual statements made of Gholam Azam. He submitted that during cross-examination, Prosecution witness 1 admitted that in 1971 censorship was imposed under martial law and was equally applied to all newspapers. Imran additionally noted that the Investigating Officer, prosecution witness 16, admitted during cross-examination that did not know about the imposition of censorship at the time and had not investigated the matter. The witness further admitted that he would not be able to identify how many of the news reports in evidence had been published subject to censorship regulations. The Defense argued said that if the reports were published subject to censorship it would be normal that no rejoinder was subsequently published. Imran concluded that the Prosecution failed to prove beyond a reasonable doubt that the statements reported in the newspapers which were attributed to Gholam Azam were in fact the statements of Gholam Azam. He also noted that the Prosecution did not even try to produce witnesses to attest to the authenticity of the newspaper reports. He argued that the news reports could be false or partially false given the ubiquity of censorship.

The Chairman interjected and stated that alternatively, the censorship regulations could have put in place to ensure objective and accurate reporting. Justice Jahangir Hossain asked the Defense whether the statutes of the International Criminal Tribunals of the former Yugoslavia and of Rwanda (ICTY and ICTR) contain a section similar to section 19(1) of the ICT Act of 1973. Imran replied that he would provide his response at a later time.

In the afternoon session the Defense drew the Tribunal’s attention to an exhibit of a report published on 7 April 1971 regarding the alleged meeting between Gholam Azam and Tikka Khan on 6 April. The text of the report said states that the two met one-on-one but the picture shows a group meeting. The Defense also noted the report did not mention the presence of Ruhul Amin though he appears in the picture.

Charge 1: Conspiracy
Count 3
The Defense then moved to the First Charge and Count 3, which alleges that Gholam Azam took part in a conspiratorial meeting on 14 April 1971. The Prosecution relied on Exhibit-479 to support the charge. The Defense read out the exhibit and submitted that report does not mention the presence of Gholam Azam at the meeting. He further submitted that none of the prosecution witnesses made any statements regarding the alleged conspiratorial meeting. From the Exhibit itself the Defense argued that it is clear that no agreement to commit atrocities against members of the Bengali or Hindu communities, or against the unarmed civilian population, was reached in the course of the meeting. Imran further stated that no evidence has been produced, either in the Exhibits or any other documents, showing any concerted or coordinated action by the alleged conspirators. Therefore he argued there is no basis on which to infer that there was an agreement to commit genocide or crimes against humanity. In Conclusion Imran asserted that the Prosecution failed to prove beyond reasonable doubt that Gholam Azam conspired with others to commit crimes under section 3(2) of the ICT Act in Bangladesh.

Count 4
The Defense then addressed Count 4 of Charge 1, which alleges that Gholam Azam met with President Aga Mohammad Yeahya Khan on 19 June 1971 in order ot inform him about the situation in East Pakistan and make plans for effectively controlling the civilian population. The Prosecution has relied on Exhibit 4, a news report published in the Daily Sangram dated 20 June 1971, to support the charge. The Defense read out the report and submitted that again it contains nothing to substantiate the allegations that Gholam Azam met with President to evaluate the activities of the three previous months and to take decisions to facilitate upcoming activities. Imran submitted that the report does not say anything about decisions made during the meeting. Nor do the contents of the article disclose the existence of an agreement to commit genocide or other crimes against humanity between Gholam Azam and President Yeahya Khan. The report no of any concerted or coordinated actions by Gholam Azam and President Yeahya Khan which would allow for the inference of an agreement to commit genocide or crime against humanity. The Defense also noted that while Prosecution witness 1 claimed that Gholam Azam met with Yeahya Khan – who clearly supported the genocide comitted in East Pakistan, the witness did not testify that an agreement between Gholam Azam and Yeahya Khan was reached at the meeting on 19 June 1971. Finally, the Defense noted that the Investigating Officer admitted that he was unable to obtain the minutes of the meeting between Gholam Azam and President Yeahya.

Count 5
Count 5 of Charge 1 alleges that Gholam Azam met with Jammat-e-Islami Chief Sayed Abul Ala Moududi on 20 June 1971 in order to review the activities and party politics of Jamaat-e-Islami and to discuss the party’s plans and activities. The Prosecution relied on Exhibit-62 in support of this count, which is a news report published in the Daily Pakistan on 21 June 1971. The Defense argued that the Exhibit does not disclose any information as to any agenda or discussion between Gholam Azam and Maududi. He further submitted that the exhibit does not substantiate the allegation that Gholam Azam met with Maududi as part of an ongoing conspiracy. Additionally Imran noted that none of the Prosecution Witnesses deposed regarding the contents of the said meeting between Gholam Azam and Maududi. The Investigating Officer failed to obtain any resolution or statement from the meeting and the Prosecution did not produce any oral or documentary evidence as to any decisions that were made at the meeting. The Defense concluded that there is no evidence on record to disclose the existence of an agreement between Gholam Azam and Maududi to commit genocide or Crimes Against Humanity

Count 6
Under count 6 of Charge 1 Gholam Azam is accused of furthering his conspiracy to commit crimes under section 3(2) of the ICT Act by meeting for 70 minutes with Yeahya Khan on 1 December 1971 at Rawalpindi. It is alleged that during the meeting Gholam Azam demanded an increase in the membership of Razakar forces and urged Pakistan Government to supply arms to allow them to confront the civilian population of East Pakistan. Prosecution relied on Exhibit-97, a news report published in the Daily Ittefaq dated 2 December 1971. However, the Defense argued that the Exhibit did not disclose the existence of an agreement to commit Genocide or Crimes Against Humanity. Nor did it show that there was such coordinated and concerted action between Gholam Azam and Yeahya Khan so as to allow for the inference of such an agreement. Nothing in the Exhibit substantiates the allegation that Gholam Azam ‘sensing inevitable defeat, decided to murder the intelligentsia of Bangladesh on a large and indiscriminate scale, as part of a ‘final solution.’” The Defense argued that Prosecution 1 failed to specify what decisions were made during the meeting. The Investigating Officer also admitted that he could not produce any resolution from the meeting. The Defense concluded that it is clear from the statements made by the Prosecution witnesses and the contents of Exhibit-97 that the Prosecution has failed to prove beyond reasonable doubt that on 1 December 1971, Gholam Azam and Yeahya Khan participated in a conspiratorial meeting to commit crimes under section 3(2) of the Act.

Charge 2: Planning
Imran submitted that Article 3 of the Genocide Convention does not include “planning” the commission of genocide as punishable offense. However, the Defense acknowledged that Article 7(1) and Article 6(1) of the ICTY Statutes and the ICTR Statutes respectively describe planning genocide or crimes against humanity as a punishable offense. Nonetheless, Imran stated that Section 3(2)(f) of the ICT Act of 1973 does not define the elements of the crime of “planning” but instead makes any crime under customary international law punishable under the Act.

Imran submitted that the actus reus of “planning” requires that one or more persons design the criminal conduct constituting one or more statutory crimes which are later perpetrated. (Nahimana, Barayagwiza and Ngeze (ICTR Appeals Chamber) 28 November 2007, para 479.) The Defense further stated that participation by planning presupposes that one or several persons contemplate designing the commission of a crime at both the preparatory and execution phases. (Gacumbitsi (ICTR Trial Chamber), June 17, 2004, para 271; Kajelijeli (ICTR Trial Chamber), December 1, 2003, para 761; Akayesu (Trial Chamber), September 2, 1998, para 480.) They further asserted that the planning must be a factor substantially contributing to the end criminal conduct. (Nahimana, Barayagwiza and Ngeze (ICTR Appeals Chamber) 28 November 2007, para 479. )

The Defense argued that the required mens rea to prove the criminal act of planning is the intent to plan the commission of a crime or at a minimum, the awareness of substantial likelihood that a crime will be committed in the execution of the acts or omissions planned. (Nahimana, Barayagwiza and Ngeze (ICTR Appeals Chamber) 28 November 2007, para 479.)

Count 1
Regarding Count 1 of Charge 2 the Prosecution relied on Exhibits 33 and 34. Prosecution Exhibit 33 shows that Gholam Azam and other political party leaders met Tikka Khan, but contains nothing to show that the purpose of the meeting was to design and plan criminal conduct such as the commission of atrocities against members of the Hindu or Bengali communities. The Defense asserted that no attempt has been made by the Prosecution to establish that Gholam Azam and other leaders designed the commission of atrocities at both the preparatory and execution phases. The Prosecution has failed to show that before or at the meeting on 4 April 1971, Gholam Azam and others formulated ‘a method of design or action, procedure, or arrangement for the accomplishment of crimes against members of the Hindu or Bengali community or unarmed civilian population.’ Furthermore the Prosecution failed to prove that the alleged planning was a factor which substantially contributed to the ultimate criminal conduct. The Defense therefore argued that he Prosecution has failed to prove that Gholam Azam committed the offense of planning.

The Defense acknowledged that Exhibit 34 states that Gholam Azam and other political leaders proposed the formation of the Peace Committees with a view to “restoring normalcy in the region” and eliminating fear and anxiety from the minds of the people. The Defense argued that the Peace Committees were not formed with the purpose of attacking members of the Hindu or Bengali community or unarmed civilian population. Furthermore, by proposing the formation of Peace Committees, Gholam Azam and other political leaders cannot be said to have planned or designed the commission of genocide or crimes against humanity.

Prosecution witness 1 did not state that Gholam Azam and other political leaders designed the commission of atrocities against members of the Hindu or Bengali community or against the unarmed civilian population. Nor did Prosecution witness 2 make any statement that Gholam Azam and other political leaders planned or designed the commission of offenses under section 3(2) at both the preparatory and execution stage. Imran argued that simple planning for the formation of Peace Committees and auxiliary forces is not an offense under section 3(2) of the ICT Act 1973. The Defense concluded that Prosecution has failed to prove beyond reasonable doubt that Gholam Azam committed the offense of planning the commission of offenses under section 3(2) of the Act.

Count 2
Turning to Count 2 of Charge 2, the Prosecution relied on Exhibits 37, 101 and 167. Exhibit 37 is a news report published in the Daily Azad dated 11 April 1971 which announces that Peace Committees will be formed in various unions and villages with a view to restore normalcy in the province. Exhibit 101 and Exhibit 167 are news reports published in the Daily Purbodesh dated 11 April 1971 and the Daily Paygam dated 12 April 1971. These reports announced that a Peace Committee consisting of 140 members had been formed with a view to restoring normalcy in the country. However, the Defense argued that nowhere in these Exhibits was it stated that Gholam Azam and others designed any criminal conduct at the preparatory or execution level. Furthermore, there is nothing in the news report to show that Gholam Azam designed any action, procedure or arrangement for the accomplishment of the crimes of genocide or crimes against humanity. The Defense concluded that the Prosecution failed to prove beyond reasonable doubt that Gholam Azam planned with others to commit crimes under international law. 

Count 3
Regarding Count 3 of Charge 2, the Prosecution relied on Exhibits 481 and 457. Exhibit 481 is a fortnightly report on the political situation published in the first half of April 1971, showing that a meeting was held at the residence of Mr. A.Q.M Shafiqul Islam during which resolutions were adopted demanding protection of life and properties of the general public, including commoners, against the “miscreants.” The Defense submitted that demanding protection of life and properties of the general public against the miscreants does not amount to an offense under the 1973 Act or any other law. Imran also submitted that Exhibit 457 is the East Pakistan Police Abstract of Intelligence for Dhaka during the week before 8 May 1971. The abstract shows that a meeting was held at the residence of A.Q.M Shafiqul Islam during which the participants discussed the formation of Peace Committees in different unions of Dhaka City for the express purpose of restoring normalcy. A proposal for supporting the observance of Eid-i-Milad-un-Nabi on 8 May 1971 was also discussed during the meeting. The Defense again asserted that the formation of Peace Committees and plans to support the observance of Eid-i-Milad-un-Nabi does not amount to the commission of any offense under the 1973 Act. They argued that the Peace Committees were not set up as criminal organizations for attacking civilians or members of the Hindu or Bengali community. Therefore, no offense was committed under the 1973 Act merely by attending a meeting and discussing the formation of Peace Committees.

Charge 3: Incitement
The Defense then moved to address Charge 3, which alleges that Gholam Azam incited the commission of crimes under section 3(2) of the ICT Act. They argued that incitement to commit crimes against humanity has not been recognized as a crime under international law but acknowledged that incitement to commit genocide is a crime under Genocide Convention.

In order to establish incitement to commit genocide, the Defense asserted that the Prosecution must prove that the Accused had the intent to directly and publicly incite others to commit genocide as well as the intent to destroy a group in part or in whole on the basis of one of the protected grounds. (Nahimana, Barayagwiza and Ngeze, (ICTR Appeal Chamber), November 28, 2007, para 677.)

Court Administration:
It should be noted that today’s proceedings were not video recorded as usual.