17 April 2013: ICT-1 Daily Summary – Gholam Azam Closing Arguments, Prosecution’s Reply

Today the Tribunal heard matters in the following cases:

  1. Chief Prosecutor vs. Salauddin Qader Chowdhury: Request for Adjournment
  2. Chief Prosecutor vs, Gholam Azam: Prosecution’s Reply to Defense Closing Arguments, Defense Rebuttal

Because today was fixed for the Prosecution’s reply in the Gholam Azam case, Ahsanul Huq Hena, Defense counsel for Salauddin Quader Chowdhury, requested adjournment of the Chowdhury case until 21 April 2013. The Tribunal adjourned the proceedings for the day and scheduled the case to be heard tomorrow, 18 April 2013.

Today in the Gholam Azam case the Tribunal heard the Prosecution’s reply to the Defense’s Closing Arguments. Prosecutors Sultan Mahmud Simon, Turin Afroz and Haider Ali submitted arguments. After the completion of Prosecution’s submissions the Defense was given 25 minutes for their rebuttal. After hearing both sides the Tribunal officially took the case under consideration awaiting verdict.

Prosecution’s Reply
Prosecutor Sultan Mahmud Simon began by arguing that counsel for the Accused had presented only one theory of defense, being that Gholam Azam had supported Pakistan during the Liberation War with the purpose of maintaining the unity of Pakistan. Simon questioned whether such support could be considered lawful after Bangladesh’s declaration of independence on 26 March 1971. The Prosecution submitted that the Tribunal must consider the entirety of the case against Gholam Azam in light of the historical events of 1971. He submitted that Prosecution proved each element of the alleged crimes through sufficient oral and documentary evidence. The Prosecution also asserted that paragraph 6 of the Formal Charge discussed the Doctrine of Superior Responsibility. Prosecutor Simon read out sections 9, 10, 16 and 19 of the ICT Act of 1973 and talked about judicial notice.

The Tribunal Chairman asked whether the Prosecution had exhibited the documents (including some reports published in international media regarding the atrocities committed in Bangladesh in 1971) referred to in the Formal Dharge. The Prosecution replied that seven books had been submitted and that the Tribunal had been asked to take them under judicial notice. The Defense dissented and claimed that the Prosecution did not exhibit the documents that the Tribunal is specifically requesting.

The Prosecution argued that Gholam Azam supported Pakistan despite being aware of the atrocities committed by the Pakistani army on 25 March 1971. Prosecutor Simon referred to ‘Jibone Ja Dekhalm’ (Exhibit-H) and also submitted that the atrocities committed by the Pakistani occupation forces were known internationally at the time. The Prosecution claimed that the Defense failed to produce a single document showing that Gholam Azam criticized the atrocities committed by the Pakistani occupation forces. Prosecutor Simon claimed that this proves Gholam Azam’s involvement in and support for the atrocities. 

The Prosecution stated the that Defense argued the same points during Closing Arguments as during the hearing for the Charge Framing Order. He claimed that the Tribunal has already issued an order regarding the sufficiency of the charges and therefore there is no scope for the Defense to claim that the charges are defective. Prosecutor Simon referred to Order 25 and read out the order.

The judges interjected and Justice Jahangir Hossain noted that the Defense argued that Gholam Azam had not been charged specifically under the Doctrine of Superior or Command Responsibility. Justice Anwarul Haque added that Defense argued that the charges did not describe the Gholam Azam’s alleged crimes with adequate specificity. Furthermore, the Defense argued that conspiracy to commit genocide and incitement to commit genocide are inchoate offence and therefore it is necessary to prove that genocide occurred pursuant to the conspiracy or incitement. Additionally, according to the Defense arguments, the Prosecution has not provided reasonable explanation for the 40 year delay in prosecution. The Prosecution did not directly answer these questions. Prosecutor Simon submitted that the nexus is not the essential element to prove genocide or crimes against humanity. [It is unclear what Prosecutor Simon meant by nexus.]

Domestic Law vs. International Law: The context of the 1973 Act
Next, Prosecutor Turin Afroz argued that planning is itself a crime under Bangladeshi law. [Prosecutor Afroz did not provide reference of any section.] Additionally, Section 3(2)(c ) of the ICT Act of 1973 provides that destroying a political group in whole or in part constitutes Genocide, even though the Genocide Convention does not consider political groups a protected category. Prosecutor Afroz submitted that Article-25 of the Bangladeshi Constitution states only that the nation willl respect international law. She referred to a case H M Ershad vs Bangladesh, 2001 BLD (AD) 69 and submitted that international instruments will only be used to fill gaps in domestic law when there is no applicable domestic statute. When there is a conflict between domestic law and international law, domestic law will be given primacy. Prosecutor Afroz asserted that the ICT Act of 1973 should therefore prevail over the Genocide Convention. Furthermore, Prosecutor Afroz referred to the preamble of the Genocide Convention and argued that the exclusion of political group from the categories protected under the Genocide Convention was a political arrangement. She stated that under international customary law political groups are recognized as a protected category. She asserted that international customary law should be followed over any international statute.

Justice Anwarul Haque interjected at this point and asked the Prosecution to identify international customary laws regarding planning and incitement of Genocide or Crimes Against Humanity under which political groups are considered a protected group. The Prosecution said that the relevant laws would be provided later on. Prosecutor Afroz asserted that Article 38 of the International Court of Justice 1945 identifies treaties, international conventions, general principles of law, and decisions of national courts and international courts, as sources of international law. Citing to Nicaragua vs USA (ICJ, 1984, Prosecutor Afroz asserted that simultaneous consideration should be given to all sources. She submitted that the decisions of national courts are equally important.

Prosecutor Afroz then addressed four arguments raised by the Defense: Defectiveness of Laws, Defectivenss of the Charges, Absence of Chain of Command and Lack of Evidence.

Argument regarding Defective Law
Prosecutor Afroz submitted that the words ‘superior officer,’ used in section 4(2) of the ICT Act 1973, do not refer to military officers alone, but also include civilian superiors. She further submitted that if the intention of the Parliament was to limit liability to military officers, then the law would not use the word ‘subordinates.’ She submitted that civilian subordinates were included under the ICT Act of 1973 and that it would be illogical to exclude civilian superiors from liability. She submitted that the reasonable conclusion is that ‘Superior officer’ also includes civilian superiors. Prosecutor Afroz further submitted that the Collaborators Act was not enacted to punish the accused for the crime of Genocide or Crimes Against Humanity.

The Chairman interjected that the Defense argued that the ICT Act of 1973 was enacted only to try the 195 Pakistani war criminals. Ms. Afroz responded that no Section of Act supports that argument.

Argument regarding Defective Charges
Prosecutor Afroz submitted that while international law specifically discusses the requirement of knowledge on the part of the superior in order for liability under the Doctrin of Superior Responsibility to attach, Section 4(2) of the ICT Act 1973 does not require knowledge as an element of the crime. She argued that the Tribunal should not look to the charges of others international courts where the ICT Act of 1973 is explicit as to its requirements. The Prosecution asserted that the charges against Gholam Azam satisfy Section 16(1) of the ICT Act and stated that Section 4(2) does not have to be explicitly referenced in order to charge the Accused under the Doctrine of Command Responsibilty. Furthermore, Prosecutor Afroz argued that Section 16(1) does not require that the Accused be informed of the mode of liability under which he is charged. Therefore, following Section 16(1) of the ICT Act, Gholam Azam was provided sufficient notice of the charges against him.

The Prosecution submitted that Gholam Azam was charged for crimes committed under section 3(2) of the ICT Act 1973 all over Bangladesh. Prosecutor Afroz stated that there is no requirement of perfection. She referred to the case of Prosecutor vs Florencio Tacaqui  in East Timor, and stated that in comparison to that case the Charge Framing Order against Gholam Azam is superior to that against Tacaqui. Therefore she stated there can be no argument that the charges against Gholam Azam are defective. She noted that Tacaqui was not charged with superior or command responsibility but was convicted under the doctrine. The court in the Tacaqui concluded that to neglect to recognize the Accused’s role or his status in the militia of Passabe would be a gross error and that Mr Tacaqui was responsible for the whole of his subordinates actions, not only for those during which he was present. (Tacaqui Judgment, at p 20, para 3 and 7). Alternatively, Prosecutor Afroz submitted that if the Charge Framing Order is defective, it may be cured under Rule 46A of the Rules of Procedure without prejudicing the Defense.

Arguments regarding Chain of Command
Next, Prosecutor Afroz argued that the Prosecution did not allege that Gholam Azam had targeted a political group, but that he had targeted a national group. She stated that on 26 March 1971 Bangladesh became a new country. She countered the Defense by saying that if the Tribunal were to measure the legal existence of an independent Bangladesh according to the recognition of other countries, it would amount to refusing Bangladesh’s own constitution. Afroz asserted by using the word ‘miscreants,’ Gholam Azam was not referring to freedom fighters but to all nationals of Bangladesh.

The Prosecution stated that under Section 4(2) of the 1973 Act, a finding of liability under the Doctrine of Superior Responsibility requires the Prosecution to prove only 1) whether perpetrators have committed any crimes specified in section 3 of the ICT Act 1973 and, 2) whether the accused bears ‘superior responsibility’ for commission of such crimes. Prosecutor Afroz submitted that the perpetrators must be identified and the commission of the alleged crimes by the perpetrators must be proved beyond reasonable doubt. Regarding the second requirement she submitted that there must be a superior-subordinate relationship between the accused and the perpetrators, as shown by the existence of effective control over the subordinates. Additionally the Prosecution must show that the Accused, as a superior, failed to prevent or punish the perpetrators.

The Prosecution asserted that the existence of a superior-subordinate relationship may be proven by showing that the superior has either de jure or de facto authority over the subordinate. Prosecutor Afroz stated  the word ‘Ameer’ also means military commander. She argued that Gholam Azam controlled the internal management [she did not specify over which group: Pakistani Army, Razakars, Al-Badr, Al-Shams, Jamaat-e-Islami, etc.]. The Prosecution argued that the evidence has sufficiently shown that Gholam Azam failed to take proper and reasonable steps, and that he failed to prevent or punish his subordinates. She cited to the ICTR case of Kamuhanda (2004).  She submitted that Gholam Azam could have informed the appropriate authorities or canceled the membership of those perpetrating atrocities, but that he failed to do so. By failing to do so, the Prosecution stated that Gholam Azam encouraged those who were supported by the Pakistani war criminals and those committing atrocities. Prosecutor Afroz denied that the Prosecution must show that Gholam Azam directed a member to commit a specific crime and stated that Gholam Azam was the chief policy maker. In support of her arguments she referred ICTR cases Kajelijeli (2005) and Nahimana (2007); and ICTY cases Blaskic (2004), Halilovic (2005).

Arguments regarding Lack of Evidence
The Prosecution then addressed the Defense’s argument that there is insufficient evidence to prove the allegations against Gholam Azam. Prosecutor Afroz argued that newspaper reports and photographs which are deemed to have probative value must be admitted and be relied upon. She cited to a US 6th Circuit Appellate division case, Trustees of German Township vs. Farmers & Citizens Sav. Bank Co, 113 N.E.2d 409 (C.P. Ohio) (1953), in which old community newspapers which the court relied on in taking judicial notice of historical facts reported therein. She submitted that the US Federal District Court in Dallas County vs Commercial Union Assurance Co, 286 F.2d 388 (5th Cir. 1961) at p. 397 admitted a newspaper publication into evidence because it was necessary and trustworthy, relevant and material. Prosecutor Afroz described the documents submitted by the Prosecution in this cas as trustworthy because they are 40 years old and because there was no motive to falsely report the events.

The Prosecution further argued that the Tribunal does not require proof of facts of common knowledge and may take judicial notice of such facts. She submitted that the element of the actus reus of the alleged offences committed by the members of Jamaat-e-Islami, Islami Chhatra Shangho, Peace Committee, Razakars, Al-Badr, and Al Shams have been proven beyond a reasonable doubt by the Prosecution through the doctrine of judicial notice. She referred section 19(3) of the ICT Act of 1973 in support of her arguments. Prosecutor Afroz also referred to the decision of the ICTR Trial Chamber in Prosecutor vs Semanza, (2000), in which it defined common knowledge as encompassing those facts which are not subject to reasonable dispute including, common or universally known facts, such as general facts of history, generally known geographical facts and the laws of nature. She submitted that it is common knowledge that Crimes Against Humanity, Genocide, and War Crimes were committed during 1971 and no further proof of these crimes is required. Additionally, the Prosecution stated that the oral testimony of Prosecution witnesses and documentary evidence support the allegation that such crimes were committed. Prosecutor Afroz concluded that the Tribunal should take judicial notice of such common facts.

The prosecution relied on the ICTR case of Prosecutor vs Karemera, Appeals Chamber of the ICTR, 16 June 2006, paras 33-35, and noted that the ICTR took judicial notice of the fact that genocide occurred in Rwanda in 1994. She submitted this Tribunal has previously taken judicial notice the common knowledge that crimes specified in section 3(2) of the ICT Act 1973 were committed by members of the Pakistani army, Razakars, Al-Badr, Al-Shams, the Peace Committee and Jamaat-e-Islami during 1971. The Prosecution argued that the Tribunal should follow that precedent in this case as well. They alleged that Prosecution witnesses 1, 2, 3, 11, 12, 13 and 14 testified before the Tribunal that the atrocities of 1971 were committed by the Pakistani army as well as the member of the Peace Committee, Razakars, Al-Badr, Al-Shams. Additionally, documentary evidence has also been submitted in support of this claim. Finally, Prosecutor Afroz noted that Prosecution witnesses 1, 2 and 3 clearly stated that the Peace Committee, Razakars, Al-Badr, and Al-Shams were formed by the members of Jamaat-e-Islami and Islami Chhatra Shangho.

Thereafter, Prosecutor Sultan Mahmud Simon continued with the submission of the Prosecution’s reply. He argued that in the book by Raw Forman Ali it was stated that through the war Pakistan intended to Bengali people into a minority group. He argued that this proves the intent to destroy Bengalis as a national group. Prosecutor Simon stated that Gholam Azam used the words ‘miscreants’ ‘rebel’ and ‘enemies’ to indicate the Bengali people as a ‘national group.’ He also argued that Gholam Azam’s statements instigated or prompted Razakars, Al-Badr, Al-Shams, Peace Committee, Islami Chhatra Shangha and Pakistani occupation forces to attack with the intent to destroy a national group. He also argued that previously “political group” was considered a protected category under the Genocide Convention. He referred to the penal codes of Colombia, Costa Rica, Ethiopia, France and Lithuania and submitted that penal code of these countries regarding genocide consider political groups to be protected categories.

At this stage Prosecutor Afroz submitted that incitement itself is an offence under international customary law.

Prosecutor Haider Ali stated that while the Defense claimed that Gholam Azam supported a united Pakistan for political reasons, the Prosecution has shown that he did not even criticized the atrocities committed by the Pakistani occupation forces and other auxiliary forces. Thus the Prosecution concluded it’s reply to the Defense’s Closing Arguments.

Reply of the Defense
The Tribunal then allowed Defense counsel Imran Siddiq to conduct a brief rebuttal of the Prosecution’s argumens. Imran submitted that a political leader may not be automatically deemed a superior officer. He submitted that the Prosecution submitted no proof, by oral or documentary evidence, that “superior officer” could be used to refer to civilian superiors. He asserted that Command Responsibility as codified under Section 4(2) is not applicable to civilians. The Parliamentary debate in 1973 of the International Crimes Tribunal Bill reveals that the ICT Act was enacted to try the 195 Pakistani war criminals. Imran noted that the Act was amended to include ‘individual’ and ‘group of individuals’ in Section 3(1). However, Section 4(2) was not amended, showing that the legislature did not intend to expand the Doctrine of Command Responsibility to encompass civilians.

Regarding defects within the charges, Imran submitted that the charges failed to accuse Gholam Azam of committing a specific crime on a specific date and place. He submitted that the charge did not provide the particulars of the alleged crimes. The Defense argued that this is a clear violation of Section 16 of the ICT Act and further asserted that the Tribunal has passed the stage where they may cure the charges without irreparably prejudicing the Accused. Therefore the benefit of the defects should be given to the Accused. He submitted that the case of Prosecutor vs Florencio Tacaqui (East Timor), referred to by the Prosecution, is not relevant here because in that case there were witnesses against such allegation and many witnesses described Tacaquia as militia leader. However, in this case the Prosecution has failed to present oral or documentary evidence in support of the crimes committed by Gholam Azam.

The Defense argued that to prove effective control the Prosecution must prove that Gholam Azam had the material ability to command, prevent or punish the actions of his subordinates. Imran asserted that the Prosecution failed to produce evidence of a specific incident in which Gholam Azam failed to take the necessary and reasonable steps to inform the proper authorities. He also argued that the Prosecution failed to produce a single piece of evidence showing that Gholam Azam had power to prevent or punish his subordinates. He concluded that the Prosecution’s evidence is not sufficient to prove the allegations against the Accused.

Regarding judicial notice of facts of common knowledge, the Defense argued that the Tribunal may not take judicial notice of a disputed matter. They cited to Momir v. Prosecutior, case no. IT-02-60/1-A, para 10 . Similarly, the Tribunal cannot take judicial notice of a fact which would have a bearing upon the decision to find the Accused guilty or innocent, or of a fact that is central to the Prosecution’s case. The Defense cited to Prosecutor vs. Casimir Bizimungu, ICTR-99-50-T, TRIAL CHAMBER II, para 21. Additionally, the Tribunal cannot take in judicial notice of the conduct and mental state of the Accused; Prosecutor v. Jadranko PRLIC, case no. IT-04-74-T, para 25. The Defense asserted that matters that may be taken under judicial notice are those that are “notorious, or clearly established or susceptible to determination by reference to readily obtainable and authoritative sources,” Prosecutor v. Semanza, ICTR-97-20-I para 25.

Regarding the Prosecution’s argument that Gholam Azam used the words ‘miscreants’ ‘rebels’ and ‘enemies’ to refer to a ‘national group,’ the Prosecution asserted that this is not supported by the Prosecution’s oral or documentary evidence. Imran argued that in fact, the Prosecution documents show that Gholam Azam used these words to refer to armed freedom fighters engaging in armed combat. Finally, the Defense stated that incitement itself is not a crime; only incitement to commit a criminal act is a crime. Here they alleged that Gholam Azam never incited anyone to commit a criminal act.