24 September 2013: ICT-1 Daily Summary – ATM Azharul Islam, Pre-Trial Submissions

Today the Tribunal heard matters in the following case:

  1. Chief Prosecutor vs. ATM Azharul Islam

In the case of ATM Azharul Islam, the Defense made pre-trial submissions seeking dismissal of all charges against the Accused, ATM Azharul Islam, under Rule 37 of the Tribunal’s Rules of Procedure. Having heard partial arguments, the Tribunal adjourned the proceedings until 3 October 2013, when they will hear the remaining portion of Defense arguments.

Defense Submissions

The Accused in this case faces six charges of Crimes Against Humanity.  The proposed charges include allegations of abduction, confinement, torture, persecution, rape and other inhuman act as underlying elements of Crimes Against Humanity. Defense argued that there is no reference to arson or looting or grievous hurt in section 3(2)(a) of the ICT Act 1973, nor is there any evidence to show that these offences were crimes under customary international law in 1971.  As such, Counsel submitted, there is no scope for framing charges against the Accused petitioner for these particular crimes. In support of their submission, the Defense called the Court’s attention to Article 22(2) of the Rome Statute for the ICC.

Superior Responsibility under Section 4(2) of ICT Act 1973

The proposed charges in this case allege that the accused is responsible for the listed crimes under a theory of superior responsibility.  The Defense submitted that to avoid breaching the principle of legality and to comply with Bangladesh’s obligations under the Article 15(1) and (2) ICCPR, the definition of superior responsibility in Article 4(2) must be interpreted to accord with customary international law as it was in 1971, when the alleged crimes were committed. The Defense submitted that criminal liability of a commander or superior officer for positive acts such as ordering, permitting, acquiescing or participating follows from general principles of accomplice liability and thus amounts to individual criminal responsibility rather than superior responsibility. The Defense further submitted that in order to accord with customary international law in 1971, superior liability only applies where it can be proven that there was failure to prevent or punish crimes of subordinates. The Tribunal cannot convict an Accused under both individual and superior responsibility on the same count.  Therefore, Counsel argued, the formal charge against the Accused is defective and should be dismissed.

Turning to the standard of proof, Counsel argued that customary international law from 1971 required proof beyond reasonable doubt that the Accused is a military commander, that a superior-subordinate relationship existed between the accused and the perpetrator of the crime, that there is a causal relationship between the actions of the superior and the crimes of his subordinates, that the superior either knew or had reason to know that his subordinate was about to commit, or had already committed the underlying crime, and the superior failed to take necessary and reasonable measures to prevent the subordinate from committing the crime or to punish the subordinate for such commission.

The Defense argued that the Prosecution could not possibly discharge this burden of proof because the charges alleged only that the accused was the head of the Al-Badr in Rangpur town, but no attempt had been made to establish a superior-subordinate relationship between the Accused and the alleged perpetrators of the alleged offences.

Insufficient Factual Basis

In addition to arguing defects in the formal charges, the Defense submitted that there was an insufficient factual basis for the charges.  For example, Counsel argued that the Prosecution had failed to name the individuals who were allegedly commanded, assisted by, or provided assistance to the Accused. The Defense submitted that a detailed hierarchy of any organizational group that the accused is alleged to have been in connection with is necessary to determine the precise level of participation and involvement of the Accused in the alleged crimes. Without that, the evidence relied upon by the Prosecution in this case is insufficient to prove the proposed charges beyond reasonable doubt.

Judicial Notice

Defense took issue with paragraph 13 of the formal charges, where the Prosecution asked the Tribunal to take judicial notice of the fact that crimes against humanity were committed by the Pakistani Military with contributions from criminal organizations such as the Muslim League, Jamaat-e-Islami, Peace Committee, Razakar, Al-Badr and Al-Shams forces. Citing Prosecutor v Semanza ICTR-97-20-I Judgment 20 May 2005, paragraph 194, (Appeal Judgment), the Defense submitted that these amounted to disputed facts, not appropriate for judicial notice. Counsel argued that the Tribunal would be acting ultra vires if it took judicial notice of these matters.  This would prejudice the Defendant by breaching his right to a fair trial, ignoring the presumption of innocence, denying his right to examine the evidence against him, and lowering the burden of proof on the Prosecution.  The Defense therefore urged the Court to deny the Prosecution’s request for judicial notice. 

Joint Criminal Enterprise

In addition to superior responsibility, the proposed charges allege a form of Joint Criminal Enterprise (JCE), but the Defense submitted in pre-trial arguments that the formal charges failed to specify the particular form of JCE being alleged by the prosecution. Insufficient clarity, and failure to specify the time periods, persons involved, and the nature of the participation of the accused in the alleged criminal enterprise rendered the charges defective, accourding to the Defense.