Today the Tribunal heard matters in the following cases:
- Pre-Trial Proceedings against Mir Qasem Ali
In the case of Mir Qasem Ali the Prosecution placed their reply to the Defense’s application for the dismissal of the proposed charges against Mir Qasem Ali. The Tribunal scheduled 29 August for issuing its order on the matter.
Prosecution’s Arguments against Application for Dismissal of Proposed Charges
The Prosecution submitted that Rule 23 of the ICT Rules of Procedure states that when the Formal Charge is submitted to the Tribunal, it may be dismissed if the Tribunal is of the opinion that there insufficient grounds for taking cognizance of the proposed charges. The Prosecution argued that here the Tribunal has already taken cognizance of the charges and therefore there is no scope for discharging the accused.
Regarding the tripartite agreement signed by Bangladesh, India and Pakistan granting clemency to the 195 alleged war criminals of the Pakistan Army, Regarding the tripartite agreement signed by Bangladesh, India and Pakistan granting clemency to the 195 alleged war criminals of the Pakistan Army, the Prosecution submitted that it is a settled issue. By this it seems that they are referencing the holding of the Tribunal in its previous Judgments that the Tripartite agreement was in fact an illegal executive act that attempted to derogate Bangladesh’s obligations under international law. The Prosecution also addressed the argument that the delay of 40 years in bringing this prosecution has not been satisfactorily explained. They argued that the proposed Formal Charge provides sufficient explanation for the delay and that the issue has previously been addressed by the Tribunal, which decided in the Prosecution’s favor. The Prosecution denied that there is malafide intention behind this prosecution and submitted that there are specific allegations against Mir Qasem Ali. The charges brought against Mir Qasem Ali comply with section 16 of the ICT Act 1973. The Prosecution cited to the Gholam Azam Judgment, in which the Tribunal described Jamaat-e-Islami as a criminal organization. They asserted that Mir Qasem Ali was the Secretary of the Islami Chhatra Shangho, which was the student wing of Jamaat-e-Islami.
The Prosecution additionally argued that Article 15(1) of the International Covenant for Civil and Political Rights states that nothing in this article (15) shall prejudice the trial and punishment of any person for any act or omission which at the time when it was committed was criminal according to the general principles of law. The Prosecution submitted that where there is conflict between general principle of law and treaty law, general principal of law will prevail. The Prosecution asserted that while abduction, torture, etc. were not included in the treaties as specified underlying acts of Crimes Against Humanity, in 1971 these crimes were considered inhumane acts as Crimes Against Humanity.
Regarding Mir Qasem Ali’s alleged mode of liability, the Prosecution stated that he bore three types of liability: 1) individual criminal responsibility, 2) joint criminal enterprise and 3) superior responsibility. The Prosecution submitted that these three modes of liability have already been recognized in judgments by the Tribunal. For joint criminal responsibility and superior responsibility the direct presence of the accused and knowledge of the commission of the crimes are not necessary elements. Additionally, the Tribunal has recognized in the Gholam Azam Judgment that civilians may be held responsible under Section 4(2) for superior responsibility. Regarding the Defense’s references to the decisions of the ICTY and ICC, the Prosecution argued that these Tribunals alone do not reflect the status of international law and submitted that the Defense did not properly cite the international law of 1971 and before.