Today the Tribunal heard matters in the following cases:

1. Pre-trial proceedings against ATM Azharul Islam
2. Pre-trial proceedings against Mir Qasem Ali 

Today in the pre-trial proceedings against ATM Azharul Islam the Tribunal was scheduled to hear arguments regarding the framing of charges against the Defendant. However, the Defense filed two applications: one for adjournment and another requesting privileged communication with the Defendant. The Defense argued that they received numerous documents from the Prosecution and had not had sufficient time to examine them. Additionally they argued they needed additional time to prepare for the hearing on the charge matter and to consult with their client. The Prosecution opposed the applications, arguing that privileged communication is not appropriate at this stage of trial. After hearing both sides the Tribunal granted both applications and set 24 August for privileged communication between ATM Azharul Islam and his two defense attorneys from 10 am to 1 pm. The Proceedings were then adjourned until 29 August 2013.

The Tribunal then turned to pre-trial proceedings against Mir Qasem Ali in which it heard the Defense’s arguments for dismissal of the proposed formal charges against the Defendant.

Charge Framing Hearing Against Mir Qasem Ali
The Defense submitted their arguments regarding the framing of charges and requested that the case be discharged under Rule 37 of the Rules of Procedure. The Defense argued that the Prosecution had failed to provide an adequate explanation of the 40 year delay in prosecution and argued that the proceedings against their client are solely based on political rivalry between the party in power and Mir Qasem Ali. They asserted that the Defendant has been falsely implicated in the case and is only being prosecuted because he is a renowned leader of Bangladesh Jamaat-e-Islami. The Defense highlighted that the the Awami League and Bangladesh Jamaat-e-Islami were allied in 1995. Nonetheless, the Awami League did not bring any allegations of atrocities committed in 1971 against any leader of Bangladesh Jamaat-e-Islami at that time. It was only after Jamaat-e-Islami and the Awami League split, with Jamaat supporting the BNP, that the Awami League sought to clamp down on Jamat-e-Islami by raising these war crimes cases against the Party’s top leadership including Mir Qasem Ali.

The Defense submitted that the Prosecution’s general explanation  of the delay in Prosecution is insufficient and must be more specific. They noted that in 1972 a Tribunal was formed under the Collaborator’s Order of 1972 to try the perpetrators of 1971 for atrocities committed during the liberation war. At that time there was no complaint against Mir Qasem Ali. Moreover no First Information Report or any petition was ever filed against him in any police station or court of law in Bangladesh alleging any crime dating back to 1971. Therefore the Defense asserted that the intention behind this trial is malafide , in violation of the principal articulated in the case 39 DLR (AD) 1987. They also noted that the Supreme Court of India has held that malafide exercise of power is unlawful; AIR 1967 (SC) 483.

The Defense submitted that Rule 20 (1) of the Rules of Procedure state that at the time of submitting a formal charge in the form of a petition, it must contain the name and address of the accused person, the proposed witnesses, and the date, time and place of occurrence for the alleged crime. The Defense argued that the Prosecution failed to provide the Defense with the addresses of the witnesses as required by Rule 58A of Rules of Procedure. Additionally the Defense submitted that Prosecution did not file any application saying that the specific witness is vulnerable.

Insufficient Legal Basis
The Defense next argued that under Article 15 (1) of the International Covenant for Civil and Political Rights (ICCPR), the principal of nullum crimen sine lege, (no one shall be held guilty of any criminal offence that did not constitute a criminal offence under national or international law at the time when it was committed) should be applied to this case. The ICCPR prohibits a heavier penalty from being imposed than the one that was applicable at the time when the criminal offence was committed. The Defense argued that Article 15 (1) ICCPR also provides for the right to legal certainty, whereby all crimes must be adequately detailed in law and prosecution or punishment under vague laws is prohibited. The Defense submitted that Bangladesh has ratified and acceded to the ICCPR without any reservation and is bound by the rights and obligations established by under the treaty. Referring the HM Ershad vs Bangladesh (7 BLC (AD) 2002 page 67, para 3) the Defense argued that the national courts should follow the principles incorporated through international instruments if the domestic law is not clear. The Defense also argued that there is only one exception to nullum crimen sine lege under Article 15(1) of , which is that that nothing in the article 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 recognized by the community of nations.

The Defense asserted that the applicable law in these proceedings is Customary International Law as it stood in 1971. The Prosecution has proposed 14 charges of Crimes Against Humanity against Mir Qasem Ali and in all of the proposed charges there are allegations for abduction, confinement and torture as the underlying act of Crimes Against Humanity. In the proposed charges 11 and 12 there are additional allegation of murder and other inhuman acts. Further the proposed charges 1, 2 and 12 contain additional allegations for extortion, other inhuman acts and deportation.

Regarding torture, Defense submitted that in 1971 there was no established individual criminal liability for torture. Moreover, torture was not defined in international law until 1984. Torture was not a crime against humanity under customary international law in 1971, and so  there is no scope to frame such a charge against the Accused.

The Defense additionally noted that abduction was also not recognized as a Crime Against Humanity under customary international law in 1971. Even today, as indicated by the Rome Statute, abduction is not recognized as a Crime Against Humanity by itself and is only addressed as an element of the crime of enforced disappearance. Therefore, abduction cannot be charged as a Crime Against Humanity under section 3(2)(a) of ICT Act 1973.

Regarding confinement, the Defense submitted that the term ‘confinement’ does not appear in the Nuremberg Charter or indeed in any of the International Criminal Statutes relevant today in terms of Crimes Against Humanity. The case of Kordic and Cerkez before the ICTY was the first time that ‘confinement’ was defined according to international law. The Defense argued that not every minor infringement of liberty can be interpreted as a Crime Against Humanity and that the deprivation of liberty must be of similar gravity and seriousness as the other Crimes Against Humanity under section 3(2)(a) of the ICT Act 1973.

Turning to ‘other inhumane acts,’ the Defense argued that this category is intended to encompass only those  residual offences which arise to the level of crimes against humanity but do not fit within one of the other specified crimes. (Kordic Appeal Judgment, para 117) The act or omission must be sufficiently similar in gravity to other enumerated crimes to constitute an inhumane act. (Naletilic Trial Judgment, para 247 ICTR; Prosecutor vs Niyitegeka ICTR-96-14-T, Trial Judgment, 16 May 2003, para 460) Therefore, the Defense argued that the facts alleged under charges 2, 11 and 12 do not meet the criteria required by the residual category of ‘other inhumane acts’ because they are not of a similar gravity as the other types of Crimes Against Humanity.

The Defense acknowledged that murder has always been recognized as type of Crime Against Humanity but argued  that the facts alleged in Charges 11 and 12 do not fulfill the elements of murder.

Under charge 1 the Prosecution has proposed that Mir Qasem Ali be charged with extortion as a crime against humanity. The Defense argued that extortion is also not an underlying act of Crime Against Humanity under section 3(2)(a) of the ICT Act 1973. Therefore, the Tribunal has no jurisdiction to frame such a charge. Extortion has never been recognized as a Crime Against Humanity under customary international law.

Modes of Liability
Regarding the modes of liability, the Defense submitted that in order to establish the mode of liability, proof is required that the underlying crime was actually committed by the principal perpetrator. (Brdjanin Trial Judgment, para 267) The Defense submitted that it makes no sense, for example, to state that an accused is guilty of abetting a crime without specifying and proving beyond reasonable doubt that an underlying crime was actually committed. The Defense submitted that Mir Qasem Ali is charged with abetting and being complicit in Crimes Against Humanity under section 3(2)(g) and (h) of the ICT Act 1973 for almost all of the 14 charges. The Defense argued that abetting and complicity are modes of liability and not crimes within themselves. The Prosecution failed to specify whether Mir Qasem Ali committed the alleged criminal acts himself or whether it was committed through his alleged participation and involvement with Islami Chhatra Shangho. The Defense also asserted that the Prosecution failed to show that Mir Qasem could be held liable on the basis of the hierarchy, organization and policy of ICS or the level of his alleged involvement.

In terms of superior responsibility under section 4(2) of the ICT Act 1973, the Defense argued that the doctrine of Command Responsibility cannot be applied to an individual who is personally and directly involved in the commission of criminal offences or who can be shown to have planned, ordered, committed or aided and abetted the crimes of others. Superior responsibility is a form of liability for a commander’s failure to act when he had both the duty and the material ability to prevent his subordinates from committing certain crimes or to punish them for such violations. The Defense submitted that the Tribunal cannot convict an accused under both individual and superior responsibility on the same count. Therefore the Defense described the formal charge as defective and requested that the Tribunal discharge the matter and release Mir Qasem Ali.

Insufficient factual basis
The Defense concluded that the Prosecution failed to fulfill the requirements of section 16(1) of the ICT Act 1973 in terms of providing sufficient specific details as to the alleged crimes. The Defense submitted that the murder victims in the proposed charges of 11 and 12 have not been specified.  In charges 11, 12, 13 and 14 the Prosecution failed to specify the dates and times of the alleged crimes. Additionally, the general allegation that Mir Qasem Ali commanded or assisted the Al-Badr forces, Pakistani Army and other auxiliary forces is too vague. They argued that the evidence relied upon by the Prosecution in this case is insufficient to prove the proposed charges beyond reasonable doubt. Thereafter, the Defense prayed for an order directing for the discharge of Mir Qasem Ali in connection with offences upon section 3(2), 4(1) and 4(2) of the ICT Act 1973.