Despite being the final day of a 60-hour nationwide Hartal, ICT-1 convened to hear matters in the following cases:

1. Chief Prosecutor vs. Motiur Rahman Nizami
2. Chief Prosecutor vs. Channel 24 and others

Contempt Proceedings Against Channel 24

On 26 September 2013, the Tribunal issued an Order to the following individuals and organizations: Managing Director of Channel 24, Chief Executive Officer of Channel 24, Executive Director of Channel 24, Head of Program of Channel 24, Episode Producer of Muktobaak, broadcasted on 18 September 2013 at 11 am, Mahmudur Rahman Manna, Anchor Muktoback, Dr. Zafrullah Chowdhury, Trustee of Gonosastho Kendra and Mahfuz Ullah, and the General Secretary of the Center for Sustainable Development.  The Order directed them to reply before 10 October, explaining why contempt proceedings should not be initiated against them. The order further asked Dr. Zafrullah Chowdhury and Mahfuz Ullah personally appear before the Tribunal to explain their position, and asked Channel 24 not to re-broadcast the episode of the talk-show in question in the Order. The Tribunal  accused the guests on the show of improperly discussing a matted subjudice (under legal consideration by the Tribunal), without knowing all the facts.  In so doing, the Tribunal alleged, Channel 24 and the guests could be held in contempt for deliberately calling the trial proceedings into question. Today was fixed for further proceedings of the case, but the lawyer representing Mahfuz Ullah sought additional time to submit a reply to the show-cause notice. Md Asaduzzam appeared on behalf of Channel 24. Dr. Zafrullah Chowdhury appeared personally before the Tribunal and submitted a written reply of the notice. Thereafter, the Tribunal adjourned the proceedings of the case until 28 November 2013.

Prosecutor vs. Motiur Rahman Nizami

In the case against Motiur Rahman Nizami, the Prosecution continued closing arguments for the fourth day. The Prosecution’s submissions today covered Charge no 11, 12, 13 and 14. Thereafter, the Tribunal adjourned the proceedings of the case until tomorrow, 7 November 2013.

Incitement as an Independent Offence

The Prosecution submitted that charges 11 through 14 fall under head of any other crimes under international law, section 3(2)(f) of the ICT Act 1973. The Prosecution further submitted that these charges are brought against Nizami for inciting innocent people, pious Muslims and members of his political party to commit crimes by acting against the Bengalis and that pursuant to these incitements Islami Chattra Shangha, Al-Badr, Razakars and others carried out numerous crimes. The Prosecution claimed that incitement has been recognized as an independent offence for long in common law countries and cited R v Higgins (1801) 2 East 5, (1801) 102 ER 269; R v Banks (1873) 12 Cox CC 393; R v Williams (1893) 1 QB 320-321; R v Curr (1968) 2 QB 944, [1964] 1 All ER 487, 51 Cr App R 113, CA; Race Relations Board v Applin (1973) 1 QB 815, [1973] 2 WLR 895, [1973] 2 All ER 1190, CA, affirmed [1975] AC 259, HL; Attorney General’s Reference (No 1 of 1975) [1975] 3 WLR 11, [1975] 2All ER 684, 61 Cr App R 118, CA and R v Claydon (2005) EWCA Crim 2817. The Prosecution contended that incitement is an inchoate or anticipatory offence.

The Prosecution submitted that to commit incitement, there is no need for more than two persons. It is enough to show that one person counsels, procures or commands another to commit a crime; R v Higgins (1801) 2 East 5, (1801) 102 ER 269. It is submitted that a person may procure the commission of a crime by another even though there is no conspiracy between the two, or attempt at agreement or discussion as to the form which the offence should take; Attorney General’s Reference (No 1 of 1975) [1975] 3 WLR 11, [1975] 2All ER 684, 61 Cr App R 118, CA. The incitement can take place by words or deeds. It may be addressed to a particular person or group or to the public at large. The Prosecution, citing R v Marlow [1997] Crim LR 897, submitted that a writer was convicted for writing and publishing a book on the cultivation of cannabis because it was considered as incitement to those who brought it to cultivate cannabis.

Incitement under International Criminal Jurisprudence

Referring Akayesu (ICTR Trial Chamber) September 2, 1998, para 555 and Kajelijeli (ICT Trial Chamber) December 1, 2003, para 850, the Prosecution submitted that incitement to commit a crime is defined as encouraging or persuading another to commit the crime, including by use of threats or other forms of pressure, whether or not the crime is actually committed. The Prosecution further submitted that incitement is an act intended directly to provoke another to commit a crime or a misdemeanor through speeches, shouting, threats or any other means of audiovisual communication. Referring Nahimana, Barayagwiza and Ngeze (ICTR Trial Chamber) December 3, 2003, paras, 1015, 1029, the Prosecution submitted that the causal relationship between the speech to the crowd and widespread massacres is not requisite to a finding of incitement.

Charge no 11

Regarding charge no 11, the Prosecution submitted that on August 3, 1971, during a meeting of the Chittagong City Unit of the Islami Chhatra Sangha held at the Muslim Institute of Chittagong, Nizami as the President of the Pakistan Islami Chhatra Sangha, stated that Pakistani is the house of Allah and Allah protected Pakistan repeatedly and would do so in the future as well. It was alleged that Nizami further stated that there is no power on earth that could destroy Pakistan and Allah had taken custody of Pakistan through the Pakistani Army. The Prosecution submitted that through this speech, Nizami intended to exploit religious sentiment and incite innocent and pious Muslims to commit crimes against Bengalis; pursuant to such incitements, Islami Chhatra Sangha, Al-Badr, Razakars and others carried out numerous widespread and systematic attacks throughout the country, which resulted in the murder, torture, raping of civilians. It is submitted that in the same meeting Abu Naser, President of the Chittagong University unit of Islami Chhatra Sangha, stated that there would never be any unity with Hindus as created a separate country Pakistan at the cost of sacrifice of twenty lac lives; at the time of this inciting hateful speech, Nizami was present and silent. The Prosecution submitted that Nizami’s silence and presence during the speech confirms Nizami’s intention to incite.

In support of charge no 11, the Prosecution relied on Exhibit 1/5, The Daily Sangram dated 5 August 1971 and Police Abstract Report, vol. 9 pages 2689, 2715, 2728, 2733, 2734 and 2755. The Prosecution submitted that the said meeting was organized by the Islami Chhatra Sangha of Chittagong City Unit and attended by students and others; Nizami was an influential student leader and Islami Scholar and praised the criminal atrocities committed by Pakistani Army by saying “Allah had taken the custody of Pakistan through the Pakistani Army.” The Prosecution read the atrocities committed by the Pakistani army described in a book titled Bangladesher Sadhinota Juddher Dalilpotro vol-8 written by Hasan Hafizur Rahman (which is not exhibited). The Prosecution submitted that Nizami instigated, counseled, suggested, proposed, and requested the audience to risk their lives to counter the miscreants. The Prosecution submitted that Nizami claimed Pakistan to be the House of Allah and remained silent when his subordinate student leader made communal statements against Hindus. Referring the Holy Qur’an verse 26 of Surah Hajj, the Prosecution submitted that Pakistan cannot be the House of Allah and Nizami knowingly provided a wrong interpretation of the Holy Qur’an and incited the audience to commit crime.

The Prosecution stated that to find out whether a particular statement can amount to incitement, both text and context must be considered. Referring Bikindi (ICTR Trial Chamber) December 2, 2008, para 387, the Prosecution submitted that, to determine whether a speech is a direct and public incitement, context is the principal consideration, specifically i) the culture and linguistic content; ii) the political and community affiliation of the author; iii) its audience and iv) how the message was understood by its intended audience. The Prosecution then proposed that the Nizami’s statement passed both the tests of text and context and could therefore be considered incitement.

Charge no 12

It is alleged that on August 22, 1971, Nizami gave a speech at a meeting organized in remembrance of Al-Madani which was held at Islami Academy Hall; there, he stated that taking revenge for the Al Madani’s blood would prove their respect for Al-Madani. Nizami allegedly further declared that such revenge would only be possible by uprooting the enemies of Islam; he cautioned the audience that the history of Islam is not only about people losing their lives but also about becoming martyrs and upholding the principle of Allah through the destruction of Islam’s enemies. It is alleged that Nizami stated that those persons who wanted a separate Pakistan were also those very persons who wanted to uproot Islam from Pakistan; he urged everyone to follow the path left by Madani and dive into Jihad. It is alleged that this speech of Nizami incited the minds of innocent people and members of his political party to eliminate those struggling to free Bangladesh from Pakistani occupation—the enemies of Pakistan.

In support of this charge, the Prosecution relied on Exhibit 2/10, The Daily Sangram dated 23 August 1971. The Prosecution submitted that the said meeting was organized by Islami Chhatra Sangha on August 22, 1971, and attended by students and others; Nizami was an influential student leader and Islamic Scholar and directly instructed the audience that by killing enemies of Islam, one could actually avenge the death of Al-Madani, a prominent leader of Pakistani Jamaat-e-Islam. Nizami incited others to counter-attack the miscreants and participate in Jihad in the name of protecting Islam. The Prosecution submitted that the 1971 Liberation War could not be equated with Jihad since the war was between Muslims. The Prosecution argued that Nizami knowingly made relentless efforts to incite people to believe and act that the war was a religious war when it was really a movement for self determination since West Pakistanis treated them unfairly; Exhibit S, page 33 and Exhibit AF Vol 3A page 125, 127, 139 & 140 (Defense Documents).

Charge no 13

It is alleged that on September 8, 1971, Nizami gave a speech at a gathering organized by the Dhaka City unit of Islami Chhatra Sangho on the occasion of Defense Day and stated that all members of Islami Chhatra Sangho were fully committed to protecting every inch of their country. Nizami allegedly further stated that members of Islami Chhatra Sangho were even prepared to strike on the main land of India for the sake of protecting Pakistan and urged authorities to grant permission to members of Islami Chhatra Sangha in this regard. Nizami allegedly declared that the main enemy of Pakistan was India and undertook oaths of all those present that they would eliminate the people collaborating with India. Through this inciting speech, Nizami allegedly intended to incite innocent people and members of his political party to take revenge and eliminate those struggling to free Bangladesh from occupation by Pakistani military forces.

In support of this charge, the Prosecution relied on Exhibit 2/15 The Daily Sangram, dated 9 September 1971. The Prosecution submitted that the said meeting was organized by the Islami Chhatra Sangha on September 8, 1971 and attended by the students and others where Nizami was an influential student leader and an Islamic Scholar and incited all of the members of Islami Chhatra Sangha to take up arms to form a militia. The Prosecution submitted that the text and context of the speech is important and shows the incitement of Nizami.

Charge no 14

It is alleged that on September 10, 1971, Nizami gave a speech addressing Razakars at the Jessore district Razakars headquarters and urged the Razakars to be fully aware of their holy duties at that time of national crisis by emphasizing verses 111 and 112 of Surah Touba of Holy Qur’an. These two verses meant that Allah had surely purchased the life and soul from pious people in exchange for which there was heaven, and it was the duty of those pious persons to fight along the path set by Allah. By quoting the Holy Qur’an and invoking religious sensitivities, Nizami allegedly incited members of Razakars to take revenge and eliminate those fighting to free Bangladesh from Pakistani occupation.

The Prosecution relied on Exhibit 2/16, The Daily Sangram, dated 15 September 1971. The Prosecution submitted that the said meeting was organized by the Islami Chhatra Sangha on September 14, 1971, and attended by students and others; Nizami was an influential student leader and an Islamic Scholar, and he used reference from the Holy Qur’an to justify the formation of militia. The Prosecution submitted that they proved the incitement beyond reasonable doubt.

Liability under Joint Criminal Enterprise and Superior Responsibility

The Prosecution submitted that Nizami will be liable for his individual criminal liability under section 3(2) of the ICT Act 1973. He has liability under section 4(1) and 4(2) of the ICT Act 1973. The Prosecution further submitted that in the Nuremberg Trials, the members of Nazi forces were found liable for their membership only. Referring a Defense Document Exhibit AB, Vol 1, page 203, 205 & 206 Shathiya Berar Jonogon, Jononeta Moulana Motiur Rahman Nizamir Shongkhhipto Porichiti (Al-Falah Printing Press, 2001) the Prosecution submitted that Nizami was a born leader. Referring Exhibit 1, a letter of Sirajul Islam Matlib, President of Islami Chhatra Sangha, the Prosecution submitted that Nizami had authority and effective control. The Prosecution submitted that Nizami directed that those who would not join Al-Badr would not be considered members of Islami Chhatra Sangha. The Prosecution submitted that Nizami numbered 43 among 500 most influential Muslims, Exhibit AA, page 1, 4, 25, 84 and 133, John Esposito et al (ed), The 500 Most Influential Muslims (1st ed, Wasington DC: The Royal Islamic Strategic Studies Centre, 2009 (Defense Document). The Prosecution submitted that the superior responsibility of Nizami is established by both factual and legal aspects and submitted that the opinion given by General (retd) Sir Jack Deverell KCB OBE, report on Command Responsibility: Bangladesh War 1971, Exhibit V (Defense Document) is a shallow opinion in legal context. The Prosecution submitted that Nizami was a ringleader of 1971 and has liability both under 4(1) and 4(2) of the ICT Act 1973.