Today the Tribunal heard matters in the following cases:
- Chief Prosecutor vs. Gholam Azam: Defense Closing Arguments
Today Defense counsel Imran Siddiq continued presenting the Defense’s Closing Arguments. He added some additional arguments regarding the impact of censorship on the reliability of documentary evidence and then addressed Charge 3 which is for Incitement to commit crimes under section 3(2) of the ICT act of 1973.
The Defense added some points to the arguments they submitted regarding censorship on 3 April. Imran submitted that a conviction cannot be solely based on newspaper reports where the newspaper reports have not been collaborated. The Defense submitted that it is evident from Exhibit-EK that the Chief Martial Law Administrator imposed restrictions on newspapers through the Martial Law Regulation no 77, prohibiting printing or publishing any news which is calculated to prejudicially affect the integrity or solidarity of Pakistan. The Defense argued that Prosecution Exhibit 3, a news report published in the daily Shangram 19 June 1971, shows that Gholam Azam called for the withdrawal of censorship restrictions. Imran also noted that Defense witness 1 testified that during 1971 the Martial Law Authority imposed censorship on mass media by official notification. The Defense pointed to pages 62 and 84 of the book Muktijuddho: Bibhinno Dristikon Theke, by Sadruddin, stated that due to censorship news received from East Pakistan was very limited and unreliable. The Defense further noted that the book Ami Mujib Bolsi, by Krtittibas Ojha, states that censorship was imposed on newspapers, radio and television were not allowed to publish without prior permission regarding the contents from the relevant authority.
The Defense next referenced Exhibit-AH, an interview published in the daily Shangram on 15 December 2011, showing that Gholam Azam stated that his speeches against the Martial Law Authority were not published in the newspapers due to censorship. Defense Exhibit-DE, excerpts of The Deliberate Debacle by Dr Safdar Mahmood, also stated that due to censorship regulations speeches given by Gholam Azam criticizing the Martial Law Authority were not published by either electronic or press media. Imran then referred to Defense Exhibit-CY, an interview with the daily Shangram dated 19 November 2000, in which Gholam Azam stated that he demanded the transfer of power to Sheikh Mujibur Rahman several times after 25 March 1971 but that newspapers did not publish those statements due to censorship at the time.
The Defense summarized that censorship was imposed by the Martial Law Authority on 26 March 1971 and, as a result, speeches delivered by Gholam Azam criticizing policies and activities of the Martial Law Authority were not reported or published by the media. Furthermore the Defense argued that the Prosecution failed to prove beyond a reasonable doubt that the allegedly incriminating statements attributed to Gholam Azam by the press during the Liberation War were in fact the statements and speeches of Gholam Azam.
Incitement (Charge no 3)
The Defense then shifted their arguments to Charge 3, which alleges that Gholam Azam incited the commission of crimes under Section 3(2)(f) of the ICT Act of 1973. Section 3(2)(f) of the ICT Act codified “other crimes under international law” as an offense. Counsel submitted that the Genocide Convention 1948 does not consider a political group to be a protected group for the purposes of the charge of Genocide. Additionally, while incitement to attack ethnic, racial or religious groups with genocidal intent is recognized as a crime under customary international law, incitement to attack a political group with the intent to destroy such a group is not punishable as a crime under international law.
The Defense referred to paragraphs 511-515 of The Prosecutor vs. Jean-Paul Akayesu, Case No. ICTR-96-4-T, in which the meaning of “group” in the context of the crime of genocide is discussed. Imran argued that the allegedly inciting speeches were directed against “miscreants,” meaning separatists who were engaged in armed combat and cannot be characterized as a national, ethnic, religious or racial group. The Defense argued that the alleged speeches of Gholam Azam do not amount to incitement to commit genocide. The Defense cited to Prosecution exhibits in which Gholam Azam called for the people of Bangladesh to stand against miscreants, rebels, separatists and Indian intruders. They stated that Gholam Azam was referring to armed freedom fighters and the Indian armed forces. Gholam Azam was not referring to Hindus, supporters of the Awami League or the Bengali people. The Defense also argued that engaging in armed combat is only a crime as defined under section 3(2)(e) and 3(2)(b) of the ICT Act of 1973. Imran read out relevant parts of Defense witness 1’s testimony and argued that his testimony supported the Defense’s case and had been unshaken during cross-examination.
The Defense next addressed the role of the Peace Committees and the charge that Gholam Azam formed them with the intent to have them commit crimes. Imran cited to Exhibits 34 and 37 and submitted that the Central Peace Committee was established on 9 April 1971 as a civilian organization with the purpose of restoring normalcy to the country and emphasizing the importance of upholding the sovereignty and integrity of a united Pakistan. The primary function of the Peace Committees was to make statements and speeches in favor of a united Pakistan and to condemn Indian aggression and interference (Prosecution Exhibits-34, 37, 40, 479, 481 etc and Defense Exhibits- BM-BQ and BS). The Defense also noted that the Investigating Officer admitted during his testimony that he could not obtain the minutes of the meetings of the working committee or executive committee of the Central Peace Committee. The Defense alleged that the Prosecution failed to produce any evidence to support the contention that the Central Peace Committee or the local Peace Committees were constituted as criminal organizations with a view to eliminating members of the Hindu community and unarmed Bengali civilian population. Regarding the alleged commission of offenses by members of the local Peace Committee, the Defense stated that Gholam Azam was not a member of any local Peace Committees. Additionally they argued that Gholam Azam did not have effective control over members of local peace committees and thus cannot be held responsible for offenses committed by them. The Defense referred to Defense Exhibits-BF-BL and BT, which show that the local Peace Committees were set up on the orders of the Governor. The Defense acknowledged that Exhibits-101, 167, 57 allegedly claim that local Peace Committees would function as per the directions of the Central Peace Committee. However, the Prosecution failed to produce any such circular or directive. The Defense argued that the Prosecution has failed to prove beyond reasonable doubt that the local Peace Committees operated as per the directions of the Central Peace Committee.
The Defense then shifted their arguments to the role of auxiliary forces and whether they functioned under the directions of Gholam Azam or other Jamaat leaders. The Defense noted that Prosecution witness 1, 3 and 16 testified that the Razakar forces were organized at the direction of a Jamaat leader. However, none of the witnesses could refer to a single document confirming such information. No news report has been exhibited by the Prosecution alleging the formation of Razakar forces under the leadership of a Jamaat leader. Prosecution witness 3 stated that Razakar forces were organized in May of 1971 in Khulna at the instance of Jamaat. The witness specified that the lead organizer was the Jamaat leader Yusuf, and that the information had been published in the Daily Purbodesh. However, the Defense argued there is not a single report from the Daily Purbodesh in May of 1971 which refers to Razakar forces being raised by Yusuf in Khulna. The Defense submitted that Prosecution witness made similar claims but also could not reference any news report of the role of one Moulana Yusuf in the organization of the Razakars. He also admitted that he did not know whether such news was reported in any newspaper prior to 1975.
The Defense submitted that Exhibit-FY, a memo dated 25 May 1971 issued by the office of the SDO at Netrokona, shows that the recruitment, training, and function of the Razakar forces were determined by the Government. The Defense argued that Razakar forces were formed by the then Government of East Pakistan in May 1971 and administered via executive orders. Furthermore the Defense submitted that Jamaat-e-Islami was not in control of the Razakar forces and referred to Exhibit H(1) (Page 145-147) in support of that claim.
Justice Anwarul Haque interjected to say that Gholam Azam had stated that the reason for sending his party members to the Pakistan Cabinet and reason for the formation of Razakar forces were one and the same. The Defense responded that the Prosecution must establish a link between Gholam Azam himself and Razakar forces in order to hold him liable for their actions. Before the enactment of the Razakar Ordinance in August of 1971, Razakar forces were organized and operating as part of the government machinery. Imran referred to Exhibit 416, a news report published in the Daily Pakistan dated 22 July 1971, and submitted that Razakars were empowered by Martial Law Ordinance 159 to arrest individuals.. He further submitted that Exhibit BV shows that on 2 August 1971, the Razakar Ordinance was enacted giving a legal framework for the operation of the Razakar forces. Additionally, Exhibit CA shows that on 7 September 1971, Razakars were placed under the control of the Pakistani Army. The Defense further argued that it is apparent from an examination of Exhibits CB-CZ that the Razakars were under the command and control of the Pakistani army and therefore there was no scope for Gholam Azam to exercise effective control over members.
According to both Prosecution and Defense exhibits the Razakars were deployed to secure bridges, roads, culverts and electric installations and to protect the same from destructions by armed ‘miscreants’ or freedom fighters (Defense Exhibit-BY, Bangladesh at War by Maj Gen Shafiullah). The Defense also stated that Prosecution Exhibits- 360/1, 361, 362, 364, 371, 377, 379, 383, 384, 385, 396, 398 and 407/1 show that the Razakars were engaged in operations against armed freedom fighters, who were termed as ‘miscreants’ or ‘Indian agents’ in the newspapers of 1971. Imran argued that the Razakars played an important role in assisting the Pakistani Government and Army in maintaining the sovereignty and integrity of a united Pakistan. The Defense concluded that supporting the Razakars and the Pakistani army in resisting liberation forces is not an offense under the provisions of the Act of 1973.
Burden of Proof and Elements of Incitement
The Defense argued that in order to find Gholam Azam liable for incitement to commit genocide, the Prosecution must prove that Gholam Azam made statements, directly and publicly inciting another person to destroy members of a national, ethnic, racial or religious group, with the specific intent to commit genocide as well as the intent to directly prompt and provoke another to commit genocide.
Imran submitted that the law requires proof of a direct and public incitement to provoke another to engage in a criminal act, (Prosecutor vs Akayesu, ICTR-96-4, September 2, 1998 para 557). In assessing the ‘direct’ element of incitement the Defense noted it is very important to determine if the persons receiving the inciting message imediately grasped the implication of the message, (Akayesu, para 557-558 and para 1011-1022; Nahimana, Barayagwiza and Ngeze (ICTR Trial Chamber), December 3, 2003). The Defense noted that the context in which the statements are made and the tone of the statements is important, (Nahimana, Barayagwiza and Ngeze (ICTR Trial Chamber), December 3, 2003, para 1001, 1022 –1024). Additionally, in the case of Nahimana, Barayagwiza and Ngeze the Defense noted that Rwanda’s culture and language was considered in determining whether a speech constituted direct incitement to commit genocide (para. 698, 700-711, 739). In particular, the purpose of the speech should be examined in order to determe whether there is direct and public incitement to commit genocide, (Nahimana, Barayagwiza and Ngeze (Appeals Chamber), November 28, 2007 para 706). The Defense also argued that the Prosecution must prove definite causation between the act characterized as incitement, or provocation in this case, and a specific offense, (Kajelijeli (ICTR Trial Chamber), December 1, 2003, para 852).
Regarding the required mental state, or mens rea, for the crime, the Defense argued that the Prosecution must establish that Gholam Azam had the specific intent to directly prompt or provoke another to commit genocide, (Akayesu (Trial Chamber), para 560; Ruggiu (Trial Chamber), June 1, 2000, para 14; Niyitegeka (Trial Chamber), May 16, 2003, para 431; and Nahimana, Barayagwiza and Ngeze (Trial Chamber), December 3, 2003, para 1012). Finally, the Defense stated that the fact that genocide occurred in an of itself does not prove that there was the intent to incite the commission of genocide, (Nahimana, Barayagwiza and Ngeze (Appeals Chamber), November 28, 2007 para 709.)
Today’s proceedings were not video recorded.