Today the Tribunal heard matters in the following cases:

1. Chief Prosecutor vs. Gholam Azam
2. Chief Prosecutor vs. Motiur Rahman Nizami

On April 15, 2013 the Defense for Gholam Azam concluded their Closing Arguments. Imran Siddiq presented the Defense’s arguments based on complicity. Senior Defense counsel Abdur Razzaq presented arguments on the Doctrine of Command Responsibility. The Defense then summarized the Charges against Gholam Azam before the Tribunal. After the completion of the Defense’s case the Tribunal asked the Prosecution to submit their reply. The Prosecution requested one day for preparation of their response. The Tribunal accepted the request and adjourned the proceedings until 17 April 2013.

After the lunch break the Tribunal turned to the Nizami case. Prosecutor Mir Iqbal informed the Tribunal that Prosecution witness 4 had been present in the morning but was now feeling sick and could not testify. The Tribunal therefore adjourned the proceedings until tomorrow, 16 April 2013.

Chief Prosecutor vs. Gholam Azam

Complicity
Count 13 Charge No 4
The Defense submitted that the Prosecution failed to prove that Gholam Azam’s press briefing substantially contributed to the commission of Genocide or Crimes Against Humanity. The Prosecution has failed to adduce evidence in the form of witnesses or documents to establish that identified members of the Pakistan Army and/or its auxiliary forces had heard or read Gholam Azam’s statement prior to committing Genocide or Crimes Against Humanity. The Defense referred to the testimony of the Investigation Officer and submitted that during cross-examination the witness admitted that he not say whether any person had committed atrocities upon hearing or reading Gholam Azam’s statements and speeches.

Count 14, Charge 4
The Prosecution has based Count 14 of Charge 4 on Exhibits 48 and 122  which quote Gholam Azam as saying the damage that was caused by the separatists cannot be remedied merely by chanting slogans. He also alleged that there were those who were colluding with India and involved in arson, looting and violence throughout the country because they wanted an independent East Pakistan. Gholam Azam alleged that in order to assist the separatists and the banned Awami League, India was smuggling infiltrators and arms into the country. Gholam Azam also praised the Pakistani Army for their role in preserving the unity of Pakistan.

The Defense argued that no where in these reports is there proof that Gholam Azam expressed support for the criminal activities of the Pakistani army, nor is there any proof that he urged the members of Jamaat or others to engage in repressive and criminal activities. The Defense further submitted that Gholam Azam’s statement that chanting of slogans would not be enough to redress the damage caused by the separatists does not amount to urging members of Jamaat to commit Genocide or Crimes Against Humanity as alleged in the Charge Framing Order.

Count 15, Charge 4
The Defense noted that Exhibit 69 shows that Gholam Azam demanded that the patriotic citizens of Pakistan be strengthened because they were helping to control the situation in Pakistan as well as assisting the Army and the administration in resisting the anti-state activities of “miscreants” and rebels. The Exhibit also shows that Gholam Azam praised the Pakistani Army for preserving the unity of Pakistan. In Exhibit 85, Gholam Azam stated that the Jamiat-e-Tolaba Arabiya and Islami Jamiat-e-Talaba were playing an important role in resisting the destructive activities of the miscreants and the infiltrators.

The Defense again argued that such statements were made in the context of the struggle to preserve the unity and sovereignty of Pakistan. Furthermore, a statement praising the patriots of the country and members of Talaba for resisting the anti-state activities of miscreants and rebels cannot be equated to directing criminal action against any member of an ethnic or religious community or the unarmed civilian population.

The Defense asserted that the Prosecution has failed to produce evidence establishing that identified members of the Pakistani Army and/or Talaba had heard or read Gholam Azam’s statement prior to committing Genocide or Crimes Against Humanity. Furthermore, the Prosecution also failed to show that such statements substantially contributed to the commission of such offenses. A mere statement by Gholam Azam does not prove that Gholam Azam aided, abetted, instigated, procured, assisted or encouraged the commission of Genocide or Crimes Against Humanity.

Count 16, Charge 4
The Prosecution hasrelied on Exhibit -70 to support Count 16 of Charge 4 of their case. In the exhibit Gholam Azam is shown to have expressed gratitude towards the Pakistani Army for preserving the unity of Pakistan and providing security to its people. He also stated that a good Muslim cannot support the Independent Bangladesh Movement. He praised the Razakar forces and also stated that dedicated and patriotic people were working together in order to eliminate the separatists.

The Defense argued that nothing in the report suggests that Gholam Azam’s speech showed his support for or connection to criminal activities being used to repress a religious or ethnic group or the unarmed civilian population. These statements cannot be treated as instigation or encouragement of the commission of Genocide or Crimes Against Humanity. The Defense also asserted that Gholam Azam’s statement that dedicated and patriotic people were working to eliminate the separatists does not constitute any offense under section 3(2) of the ICT Act 1973. Similarly, the statement that a good Muslim could not support the Independent Bangladesh Movement does not constitute an offense under section 3(2) of the Act or any other law. Additionally, in order to hold Gholam Azam liable for praising the Razakar forces, the Prosecution would have to prove that Gholam Azam’s praise actually encouraged specific Razakars to commit genocide or crimes against humanity. The Defense argued that the Prosecution ahs failed to meet there burden.

Count 17, Charge 4
According to Exhibit 489 the Prosecution has alleged that Gholam Azam attended a meeting in which the participants stressed the necessity of strict Government measures for the restoration of normalcy and the elimination of the rebels and anti-social elements. The Defense pointed out that the Exhibit does not identify who made the aforesaid statement, though it does show that Gholam Azam stated  that Jamaat had a stronghold in the western wing.

Th Defense argued that the Prosecution seeks to find Gholam Azam guilty based on the mere assumption that he made a statement advocating the elimination of rebels and anti-social elements. However, the Defense stated that such statements do not amount to inciting the commission of Genocide or Crimes Against Humanity. Even assuming the Accused did make the statement, there is no evidence on record to establish that Gholam Azam was in fact referring to Hindus, ethnic Bengalis or the unarmed civilian population when he used the terms “rebels” or “anti-social elements.” Furthermore the Prosecution has failed to establish a causal nexus between such statements and the actual commission of crimes under Section 3(2) of the ICT Act.

Superior or Command Responsibility
Senior Defense counsel Abdur Razzaq next submitted the Defense’s arguments regarding the Doctrine of Superior Responsibility. He noted that the prosecution alleged that Gholam Azam was the member of the Peace Committee, member of the 21 member executive committee, and had de facto authority. The Charge Faming Order shows that Gholam Azam has not in fact been charged under Section 4(2) of the 1973 Act, which provides for command responsibility. The Defense argued that in order for a person is be held responsible under Section 4(2) of the Act for failing to take necessary measures to prevent the commission of crimes by his subordinates, he must have been actually charged with such a crime in the Charge Framing Order. Here the Prosecution failed to place such a charge in the Charge Framing Order and cannot now retroactively add it without violating the rights of the Accused.

Abdur Razzaq pointed out that Prosecution witnesses1, 2, 3 and 16 admitted that Gholam Azam had no control over the Razakars, Al-Badr, Al-Shams or the Pakistani occupation forces. The Defense argued that reliance on 40 year old newspaper reports is insufficient evidence to prove that Gholam Azam had Superior or Command Responsibility. Razzaq additionally pointed out that the Investigating Officer himself admitted that he had no knowledge about the Crimes Against Humanity and/or Genocide committed under the command of Gholam Azam, despite being the investigator for the case.

The Defense cited to the ICTR case of  Muvunyi (Appeals Chamber), August 29, 2009, to argued that in order to prove liability under Superior Responsibility, the Charge Framing Order must establish the necessary elements of the crime. First,  the Charge Framing Order must state that the Accused was the superior of the Razakar, Al-Badr, or Al-Shams forces and that he exercised effective control over them , meaning having the material ability to prevent or punish criminal conduct. Secondly, the Order must specify the alleged criminal acts of Gholam Azam’s subordinates. Thirdly, it must be alleged that the Accused knew or had reason to know that his subordinates were going to or already had committed crimes. Finally, the Charge Framing Order must allege conduct by the Accused showing that he failed to take the necessary measures to prevent or punish the criminal acts of his subordinates.

The Defense asserted that the Charge Framing Order failed to specify these essential elements and that the Prosecution failed to prove each element beyond a reasonable doubt. Abdur Razzaq stated that the Prosecution had only adduced evidence showing that Gholam Azam was the leader of a political party, Jamaat-e-Islami. However, the Prosecution failed to establish the link between Jamaat and the criminal activities committed by Razakars, Al-Badr, Al-Shams and the Pakistani occupation forces.

The Defense noted that Prosecution witness 1 admitted that he could not say that Gholam Azam had issued any directives to the Central Peace Committee or to any member of the local (Chapainababganj) Peace Committee. Therefore, Razzaq argued that the Prosecution had failed to prove that Gholam Azam had the authority to issue such directives to members of the local Peace Committees. Prosecution witness 2 admitted during cross-examination that he had no documentary evidence of Gholam Azam issuing any orders or directions to members of the Peace Committees, Razakars, Al-Badrs or Al-Shams, but claimed that he had seen news reports to that effect. The Defense submitted that the Prosecution has not produced any news report to confirm the witness’ claim, no have they presented any document or news report containing actual orders or directions issued by Gholam Azam to his alleged subordinates.

Prosecution witness 3 also admitted that she did not know whether Gholam Azam had the power to dismiss or punish members of the Peace Committees, Razakars, Al-Badr, or Al-Shams. The Defense argued that no document or witness had provided evidence that Gholam Azam was empowered to punish or reprimand members of the aforementioned groups. The Investigating Officer also acknowledged that was unable to seize any documents relating to directives allegedly issued by Gholam. The Investigating Officer also admitted that he found no documents showing that the Peace Committee adopted a resolution giving Gholam Azam the power to suspend or dissolve local Peace Committees. Abdur Razzaq noted that Prosecution witness 2 admitted that he does not know whether the salaries or wages of members of Peace Committees, Razakars, Al-Badr, Al-Shams were paid by Gholam Azam or in any way under his control. The Defense concluded that Gholam Azam lacked the capacity to issue orders or directions to members of Peace Committees, Razakars, Al-Badr, Al-Shams. Additionally, he did not have the authority to file complaints or receive reports regarding the activities of those organizations, pay salaries or wages, or punish or prevent members from committing crimes.

The Defense argued that according to the memo dated 7 September 1971 (Exhibit CA), it is clear that the Razakars were under the control of the Pakistani Army from that date. Documents issued subsequent to 7 September 1971, including Exhibits CB, CH, and CH-CR, show that the local Razakar forces were under the command and control of the ‘Razakar Adjutant.’ Defense Exhibits CM41-CM72 show that Al-Badr was a wing of the Razakar forces and threby also controlled by the Razakar Adjutant. The Defense argued that even prior to being placed under the control of the Pakistani Army, Razakars were controlled by the Pakistani Government through executive orders, as shown by Exhibit FY (Memo dated 25th May 1971) as well as the memo dated 7th July 1971 issued by the Home (Police and Ansars) Department of the Government of East Pakistan.

Count 18, Charge no 4
After Abdur Razzaq’s arguments, Imran Siddiq returned to arguments regarding the remaining counts of complicity within Charge 4. The Prosecution relied on Exhibits 17, 113 and 489 to prove Count 18. These exhibits show that Gholam Azam demanded the inclusion of competent persons in the Pakistani delegation to the General Assembly of the United Nations so that they could adequately address the concerns of the international community. The Defense argued that the Prosecution’s allegation that this statement proves Gholam Azam’s association with, connection to and support for the criminal activities of the Pakistani Army is completely baseless.

Count 19, Charge 4
The Defense submitted that, as shown by Exhibits-20 and 72, Gholam Azam congratulated the freshly constituted Cabinet and stated that the newly appointed Ministers would have to work towards reestablishing a sense of normalcy within the country. Gholam Azam also expressed the hope that the Cabinet would play an important role in the restoration of normalcy and the re-establishment of democracy. The Defense argued that the Prosecution’s allegation that these comments show that Gholam Azam supported the criminal activities of the Pakistani army and the Peace Committees has no factual basis. These statements cannot be interpreted as encouragement or instigation of the commission of Genocide or Crimes Against Humanity.

Count 20, Charge 4
The Defense submitted that Exhibit 22 shows that Gholam Azam stated that the Peace Committees were working towards the restoration of normalcy and the newly inducted Ministers in the Cabinet would also work towards achieving the same goal. The Defense argued that these statements merely indicate that the purpose of sending two Jamaat leaders to the Cabinet was to continue working towards restoration of normalcy in the country. The news reports do not  suggest that the Jamaat leaders joined the Cabinet in order to aid, abet, instigate or encourage the commission of atrocities against members of the Hindu, Bengali or unarmed civilian population.

Count 21, Charge 4
The Defense argued that Exhibits 25, 49, 114 and 492 do not contain any statement that substantiates the allegation that Gholam Azam stated that Jamaat-e-Islami was working relentlessly through the Peace Committee to establish a civilian government in the country. The Defense submitted that the such a statement would prove association with the criminal activities of the Pakistani military and the Peace Committees is without any substance.

Count 22, Charge 4
The Prosecution relied on Exhibit 116 to make its arguments about Count 22. The Exhibit shows that Gholam Azam demanded that the Razakars be equipped with modern ammunition so that they could eliminate the “miscreants.” The Defense has consistently argued that the term “miscreants” referred to armed freedom fighters. Imran submitted that the Pakistani Army and its auxiliary forces, the Razakars, Al-Badr and Al-Shams were engaged in a full-scale war against the Freedom Fighters and the Indian Army. Gholam Azam, being in support of a united Pakistan, supported the Pakistani Army and its auxiliary forces against the liberation forces and the Indian Army. However, the Defense asserted that supporting one side during a war is not an offense under the 1973 Act. They argued that the Prosecution failed to prove that Gholam Azam used the term miscreants to refer to anyone other than armed freedom fighters.

Count 23, Charge 4
In Exhibit-31, Gholam Azam is shown to have stated that the United Coalition Party (UCP) was dedicated to preserving the ideology and sovereignty of Pakistan. He also demanded that the President visit then East Pakistan so as to more effectively make use of the support of the patriotic citizens in East Pakistan. He stated that members of the UCP and the Razakar forces were sacrificing their lives to save the country. The Defense argued that these statements cannot be interpreted as being directed against members of the Hindu, Bengali or unarmed civilian population. Therefore there can be no question of Gholam Azam being complicit in the commission of Genocide or Crimes Against Humanity.

Defense’s Summary of Charges
After completion of his argument on complicity Imran Siddiq read out a prepared summary of the charges and the Defense’s case. You may read that statement here: Defense Summary of Case