International Crimes Tribunal-2 (ICT-2)
[Tribunal constituted under section 6 (1) of The Act No. XIX of 1973]
Old High Court Building, Dhaka, Bangladesh.
| Obaidul Hassan, Chairman
Md. Mozibur Rahman Miah, Member Md. Shahinur Islam, Member Judgment 21.01.2013 |
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The Chief Prosecutor -Versus- Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu (Absconded) |
Delay cannot obstruct bringing prosecution under the Act of 1973, In the absence of any statutory limitation, the delay itself cannot preclude prosecution from adjudicating the culpability of the perpetrators of war crim-es, crimes against humanity and genocide etc.
From the point of morality and sound legal dogma, time bar should not apply to the prosecution of human rights crimes. Neither the Genocide Convention of 1948, nor the Geneva Conventions of 1949 contain any prov-isions on statutory limitations to war crimes and crimes against humanity. Article I of the Convention on the Non-Applicability of Statut-ory Limitations to War Crimes and Crimes Against Humanity adopted and opened for signature, ratification and accession by General Assembly resolution 2391 (XXIII) of 26 November 1968 provides protection against even any statutory limitation in prosecuting crimes against humanity, genocide etc. Thus, criminal prosecutions are always open and not barred by time limitation. …(43).
Still the Nazi war criminals of the Second World War are being prosecuted. Trials of genocides committed during the 1973 Chilean revolution and the Poll Pot regime of Cambodia in the 1970s are now ongoing. The sovereign immunity of Slobodan Milosevic of Serbia, Charles Taylor of Liberia, and Augusta Pinochet of Chile (with the Chilean Senate’s life-long immunity) as the head of state could not protect them from being detained and prosecuted for committing genocides, crimes against humanity, and war crimes. In view of above settled position and in the absence of any statutory limitation, as a procedural bar, only the delay itself does not preclude prose-cutorial action to adjudicate the culpability of the perpetrator of core international crimes. Indubitably, a prompt and indisputable justice process cannot be motorized solely by the painful memories and aspirations of the victims. It requires strong public and political will together with favorable and stable political situation. Mere state inaction, for whatever re-asons, does not render the delayed prosecution readily frustrated and barred by any law. …(45)
International Crimes (Tribunals) Act (X I X of 1973)
Section 10A (1)
When the accused remained absconded in spite of reasonable steps taken to inform him of the preceding through media public-ation the accused can be tried in absentia.
The Act of 1973 provides provision of holding trial in abesntia, if the appearance of the accused could not be ensured for the reason of his absconsion [Section 10A (1) of the Act]. In the international context, the issue of trials in absentia arose with the first modern intern-ational criminal tribunal, the International Military Tribunal (IMT) at Nuremberg, which was established to try war criminals operating under the European Axis Powers during World War II. Article 12 of the Charter of the International Military Tribunal allowed for trials in absentia whenever the Tribunal found it necessary to do so in the interest of justice. Famously, Martin Barman, who served as the Nazi Party secretary, was indicted, tried, and sentenced to death, all in absentia, despite doubts as to whether he had even been informed of the proceedings. …(49).
In the case in our hand, at pre-trial stage, for the purpose of effective investigation this Tribunal ordered for his arrest by issuing warrant and as it appears from the execution report, the accused knowing it preferred to remain absconded, instead of facing proce-edings and trial. The accused has not intended to take part in the trial, rather wished to escape prosecution. The jurisprudence of both the ICCPR and the ECHR confirms that a trial in absentia will not violate a person’s right to be present when he has expressly declined to exercise this right. The circumstance and the time and way the accused had gone to absconsion and left country led us to lawful inference that the accused has expressly declined to exercise his right to be present in trial. …(53).
That is to say, despite all reasonable steps taken to inform him of the proceedings including media publication, the accused Abul Kalam Azad @ Bachchu seems to be unwilling to face the trial, as he remained absconded and fled away even from country. It is a patent indicium that the accused, by his conduct, has waived his right to be present, and as such on this score too trial in his absence is quite permissible. …(54).
International Crimes (Tribunals) Act [ X I X of 1973]
Section 3 [1].
Constitution of Bangladesh,1972
Articles 47[3] and 47A [2].
The subsequent amendment as brought in 2009 Act of 1973 by inserting the phrases ‘individual’ and groups of individuals in section 3(1) of the Act carries prospective effect the present accused cannot be prosec-uted in the capacity of an individual for the offences, underlying in the Act as has been submitted on behalf of the accused. The words ‘individual’ or ‘group of individuals’ have been incorporated in section 3 of the Act of 1973 as well as in Article 47(3) of the Constitution by amendments in 2009 and 2011 respectively. The right to move the Supreme Court for calling any law relating to interna-tionally recognised crimes in question by the person charged with crimes against humanity and genocide has been taken away by the provision of Article 47A(2) of the Constitution. Hence the accused has no right to call in question any provision of the Act of 1973. …(55 and 59).
Con Tripartite Agreement and immunity to 195 Pakistan war Criminals be brought to justice?
Any agreement or treaty it seems to be conflicting and derogatory to jus cogens (Compelling Laws) norms does not ereate any hurdle to internationally recognized state obligation the tripartite agreement is not at all a barrier to prosecute even a local civilian perpetrator under the Act of 1973.
Whether the accused can be prosecuted without hot prosecuting his accomplishes If the accused is found guilty and criminally liable beyond reasonable doubt for his culpable acts, inaction in prosecuting his accomplices cannot be the reason for holding the former innocent or relieved from liability. In this regard we may recall the provision as contained in section 4(1) of the Act of 1973. …(71).
International Crimes (Tribunal) Act (XIX of 1973)
Section 19 (3)
If the specific offences of ‘Crimes against Humanity’ which were committed during 1971 are tried under 1973 Act, it is obvious that they were committed in the ‘context’ of the 1971 war. This context itself is sufficient to prove the existence of a ‘systematic attack’ on Bangladeshi self-determined pop-ulation in 1971. The Tribunal, as per section 19(3) of the 1973 Act, shall not require proof of facts of common knowledge; it shall take judicial notice of such fact. The specific offe-nces committed as ‘Crimes against Hum-anity’ during 1971 war, were very much a part of a ‘systematic attack’ of the ongoing atrocious activities.
Adjudication of Charge No. 7
International Crimes (Tribunal) Act (XIX of 1973)
Sections 3(2)(c)(i) and 4 (i)
Charge No. 7 relates to the crime of ‘genocide’ as specified in section 3(2)(c)(i) of the Act while the remaining 07 charges relate to the criminal acts constituting the offences of ‘crimes against humanity’ as specified in section 3(2) (a) of the Act. For the sake of convenience of discussion we consider it expedient to adjudicate the charge no.7 first as the nature of crimes related to it differs from that as described in the latter ones.
(i) Adjudication of Charge No 07
Summary Charge: On May 17 1971 in the early morning, accused Abul Kamal A3 ad @ Bachchu (absconded) a member of Razakar Force and subsequently the local commander of Al-Badar Bahini or as a member of group of individuals, being accompanied by his 30/35 armed accomplices is alleged to have caused indiscriminate destruction and killing of (1) Sharat Chandra Poddar, (2) Suresh Poddar, (3) Shyama Pada Saha, (4) Jatindra Mohan Saha, (5) Nil Ratan Samadder, (6) Subol Koyal and (7) Mallik Chakravarti, the members of Hindu community, by gun shot. It is also alleged that in conjunction of the incident, the accused and his accomplices gunned down (8) Haripada Saha residents of crime village Hasamdia and (9) Probir Kumar Saha @ Puitta to death by abducting them to the river bank of ‘Maindia bazar’ and thereby the accused has been charged for the physical participation and also for substantially contributing to the actual commission of offence of ‘genocide’ for ‘killing the members of Hindu community’, with intent to destroy the Hindu religious group, either whole or in part as specified in section 3(2) (c)(i) of the Act which are punishable under section 20(2) read with section 3(1) of the Act.
P.W.17 does not claim to have witnessed the accused killing his father and brother. But he has stated that he learnt instantly after the incident from Surja Kumar Das, a bullet-injured victim that accused Abul Kalam Azda @ Bachchu accompanied the army during the killing. Thus it is inferred that the accused substantially contributed and encouraged the gang of perpetrators in accomplishment of the crimes.
Defence did not put any question to P.W.17 with a view to dislodge the fact of his learning the first part of the attack at village Hasamdia from him by the P.W.16. Additionally, we do not find any reasonable ground to discard the hearsay evidence as to learning the incident of killing of 7/8 persons at Hasamdia Hindu para. Rather, P.W.16 and P.W.17 seem to be natural witnesses, particularly in absence of any reason whatsoever of being interested to tell a lie.
The hearsay evidence of P.W.17 so far it relates to the fact of his learning as to involvement of accused with killing of his father and other killings and destructive acts carries reasonable probative value.
Defence could not however controvert the commission of the event of crimes, by cross-examining P.W.19. Rather, his evidence has rendered corroboration to what has been testified by the P.W.16, P.W.17 on the acts of killing, destruction, looting and involvement of accused therewith. P.W.19, a live witness, is the son of one of victims of the horrific atrocities who had opportunity to witness the incident of killing his father Shayamapada Saha by remaining in hiding in a bamboo bush. It remains undisputed. Additionally, P.W.19 knew the accused from earlier as he (accused) was a resident of their neighboring village Kahrdia. P.W. 19 is a natural and live witness and there is no reason to exclude what he has testified.
Perpetration of the horrific event including murder of numerous civilians targeting the Hindu group including the father of P.W.19 on the date time and manner as narrated by a live witness P.W.19 has been proved. At the same time we have found from evidence of P.W.19 that the accused accompanied the gang of perpetrators and how he had directly partici-pated to the commission of destructive crimes. All these facts remain totally undisputed in cross-examination of P.W.19.
Generally, considering the horrendous nature of crimes the event could not be expected to have been witnessed by numerous persons. Incidentally some one might have opportunity of seeing it remaining in hiding at a place adjacent to the crime site. Apart from them, other person cannot be perceived to have seen the event of massacre. So, the perpetration of crime and acts and conduct of perpetrators could have been learnt from an injured victim or person who had incidental opportunity of seeing the event. It is quite natural and thus the testimony of P.W.17 and P.W.20 though hearsay inspires credence, particularly when such hearsay testimony gets fair corroboration from live witness’s (P.W.16 and P.W.19) account.
It has also been established from evidence of P.W.16. P.W.17, P.W.19 and P.W 20 that few days after the horrendous crimes almost all the members of the Hindu community residing at the crime village including the relatives of victims and sufferers became compelled to deport to India leaving their properties, houses etc. and they returned back only after achieving the victory on 16 December. That is to say, the cumulative effect of the atrocities including killing, destruction and looting of properties, mental harms compelling the Hindu community of the crime village inevitably imprints an unmistakable notion that the aim and intent of the perpetrators was to destroy the ‘Hindu group or community’, in part. This notion is qualified as ‘genocidal intent’ as required to constitute the offence of ‘genocide’. It remains totally uncontroversial.
We have found from evidence of P.W.16, P.W 17, P.W 19 and P.W. 20 that at the time of commission of crimes narrated in charge no.7 Pakistani army and some armed civilian accomplices were also with the accused Abul Kalam Azad @ Bachchu. It is also found that the accused had rendered, apart from his physical participation as found from testimony of P.W.16 and P.W.19, assistance, encourage-ment and moral support which had substantial effect on the perpetration of the massive crimes as has been listed in charge no.7. It is proved that the accused accompanied the armed perpetrators and he was physically present at the crime scenes and thus he is deemed to have rendered ‘tacit approval’ to the accomplishm-ent of the event of massacre. Besides, in conjunction of the commission of the event of massacre, accused Abul Kalam Azada @ Bachchu himself too actively and directly participated to the commission of the acts of killings.
It has been established that accused Abul Kalam Azad @ Bachchu was a potential associate of Pakistani army and also was a sig-nificant armed member of volunteer Razakar force which was organized after the Pakistani army struck Faridpur on 21 April 1971. This being the status that the accused was holding at relevant time, his presence at the crime site as an active accomplice of the principals inevitably prompts us to infer that, in addition to his direct participation of killing at the time of commission of the event of massacre, he substantially provided practical assistance, encouragement and moral support to the principals i.e co-perpetrators in perpetration of the offence of genocide that resulted in mass killing of individuals belonging to ‘Hindu Community’ which is a ‘distinct religious group’ and mass destruction and thereby he incurs liability under section 4(1) of the Act for the offence of genocide as specified in section 3(2)(c) (i) of the Act of 1973. …(112, 113, 133-135, 139, 140, 144, 147, 167 and 170)
Adjudication of charge No. 01
(Abduction confinement and torture of Ranjit Nath @ Babu Nath)
International Crimes (Tribunals) Act (XIX of 1973)
Sections 3(1), 3(2)(a) and 20(2)
Abul Kalam Azad @ Bachchu(absconded) a member of Razaker Force and subsequently the local commander of Al-Badar Bahini and or as a member of group of individuals being accompanied by accomplices is alleged to have abducted , tortured and confined Ranjit Nath @ Babu Nath , during the first week of June ,1971 as narrated in the charge No. 01 and thereby he has been charged for the physical participation and also for substantially contributing to the actual commission of offence of ‘abduction, confinement and torture as crime against humanity’ by directing attack against the Hindu civilian population as specified in section 3(2) (a) of the Act which are punishable under section 20(2) read with section 3(1) of the Act.
From the evidence of P.W.5, the victim of the offence of abduction, confinement and torture and P.W.15, it is proved that after apprehendi-ng him(P.W.5) he was brought to the Pakistan army camp at Faridpur circuit house where he found accused Abul Kalam Azad @ Bachchu holding a meeting with Major Koraishi. Mujahid , Afzal and others and there from, on direction of Mujahid the accused Abul Kalam Azad @ Bachchu and his associates blindfold-ded him (P.W.5 Ranjit) and took him to Faridpur Zilla School ground and put him under a palm tree and had beaten him up for one hour and then he was kept confined in a house inside the Bihari colony and around midnight he (P.W.5 Ranjit) escaped breaking through a window. Defence could not dislodge this incriminating version in any manner.
The context itself as reflected from policies adopted by the Pakistani army and its local pro-Pakistan political organization, chiefly the Jamat E Islami (JEI) and ‘auxiliary forces’ is sufficient to prove the existence of the notion of ‘systematic attack’ on Bangladeshi self-determined population in 1971, during the War of Liberation. This context unerringly prompts us in arriving at decision that the atrocities committed upon P.W.5 Ranjit Kumar Nath was a part of systematic attack constituting the offences of crimes against humanity as specified in section 3(2)(a) of the Act of 1973.
Accused Abul Kalam Azad @ Bachchu is thus criminally liable under section 4(1) of the Act of 1973 for physical participation and also for providing substantial contribution to the commission of offence of abduction, confinement and torture as crime against humanity as specified in section 3(2)(a) of the Act which are punishable under section 20(2) read with section 3(1) of the Act. … (172, 183—187).
Adjudication of charge No. 02
(Abduction confinement and Torture on Abu Yusuf Pakhi)
International Crimes (Tribunals) Act (XIX of 1973)
Sections 3(2) (a) and 4 (1)
Abul Kalam Azad @ Bachchu(absconded) a member of Razaker Force and subsequently the local commander of Al-Badar Bahini and or as a member of group of individuals being accompanied by accomplices is alleged to have abducted , tortured and confined Abu Yusuf Pakhi , on 26 July 1971 during the war of liberation, as narrated in the charge no.02 and thereby he has been charged for the physical participation and also for substantially contributing to the actual commission of offence of ‘abduction, confinement and torture as crime against humanity’ by directing attack against the Hindu civilian population as specified in section 3(2) (a) of the Act which are punishable under section 20(2) read with section 3(1) of the Act.
P.W.18 in narrating the fact of his abduction has stated that on April 22, 1971, Kamaruzzaman Jasu, cousin of Azad (accused), picked him (P.W.18) and his brother from the intersection of Bhanga Road and handed them to the army. And then they were produced before Pakistani Major Akram Koreshi at Faridpur Circuit House where he saw Pakistani army shooting a few people to death on the east side of the Circuit House. They were then brought to Major Akram Koraishi of the camp and his brother (who was apprehended with P.W.18) had talk with Major Koraishi in English and then they were released from the camp by another Pakistan army’s Baluch Major and then he joined the war of liberation, P.W.18 Yusuf added. This fact, as stated by P.W.18, is not related to the charge no. 2.
We thus unerringly believe that P.W.18 was subjected to torture and degrading treat-ment at the camp. It is quite impractical to think that it was really possible to see such event by any one else. P.W.7 Md. Amir Hossain who was one of detainees of the camp had occasion only to see P.W.18 detained there. But P.W.7 has not stated that he saw the accused causing torture to P.W.18 or encouraging or facilitating in any manner to the accomplishment of the offence of torture upon P.W.18 by the principals.
P.W.18 the victim does not claim that at the time of causing torture to him too accused remained present with the Pakistani army and thereby encouraged or facilitated the commission of the offence of torture to him. Indubitably it has been proved that P.W.18 was a victim of torture during his confinement of the Pakistani army camp at Faridpur Stadium and perpetrators were Pakistani army of the crime camp. But for holding the accused criminally liable for the crimes alleged it has to be established that he participated or substantially contributed or facilitated to the commission of the offence of confinement and causing torture. The mere fact that the accused had close association with the Pakistani army of the ‘army camp’ and he used to make visit to it does not ipso facto prove his liability.
From the testimony of both P.W.18 and P.W.7 it could not be found that torture, causing mental or physical harm, was done to P.W.18 by the accused himself or the accused substantially contributed or facilitated to cause any kind of torture to him. On the strength of proved fact that the accused Abul Kalam Azad @ Bachchu almost all the time used to accompany the Major of the camp by his visit and used to avail the vehicle of Major, at best it can be held that the accused used to maintain close link and association with the army of the ‘crime camp’ and encouraged and provided moral support for committing offences directing to other persons brought to the camp.
The victim P.W.18 stated that after remaining confined at the army camp at circuit house, prior to the event narrated in charge no.2, he was eventually released there from by another Pakistan army’s Baluch Major. Thus, it may be justifiably inferred that the accused had no role and control in keeping P.W.18 confined at an ‘army camp’ and to influence his release there from.
On careful evaluation of evidence adduced in support of the charge no.2, persuaded that the offence of abducting, keeping confined at the army camp and causing torture to P.W.18 has been believably proved. But prosecution, as we have found, has been failed to establish it beyond reasonable doubt that the accused Abul Kalam Azad @ Bachchu by his act or conduct contributed or facilitated to the commission of the offence of abduction, confinement and torture as crimes against humanity as specified in section 3(2) (a) of the Act and therefore, he is not found to have incurred criminally liability under section 4(1) of the Act for the offences as listed in the charge no. 2. …(188, 192, 208-210, 212 and 213).
Adjudication of charge No. 03
(Sudhangni Mohon Roy Killing)
International Crimes (Tribunals) Act (XIX of 1973)
Sections 3(1), 3(2)(a), 4(1) and 20 (2)
Abul Kalam Azad @ Bachchu (absconded), a member of Razaker Force and subsequently the local commander of Al-Badar Bahini and or as a member of group of individuals being accompanied by 10/12 armed Razakers attacked the village Kolaron (Kvjvib) under police station Boalmari district Faridpur, and then the accused is alleged to have killed Sudhangsu Mohon Roy of village Kolaron on 14 May 1971 at about 15:00 hrs. during the War of Liberation and thereby he has been charged for the physical participation and also for substantially contributing to the actual commission of offence of ‘murder as crime against humanity’ by directing attack against the Hindu civilian population as specified in section 3(2) (a) of the Act which are punishable under section 20(2) read with section 3(1) of the Act.
We have found from the corroborative and unimpeachable evidence of P.W.1 and P.W.3 that at the time of commission of the crime alleged the accused having fire arms with him led the armed gang of 10-12 accomplices. It may be validly inferred too that the accused on having training received rifle for the purpose of accomplishment of attack in furtherance of policy of Pakistani army and the pro-Pakistani political organization collaborating them in 1971. Both the P.W.1 and P.W.3 are the live witnesses and we do not see any reasonable ground to discard their testimony made before us.
Defence could not impeach credibility of P.W.1 and P.W.3. They are natural and live witnesses. Their version as to the commiss-ion of crime and physical complicity of the accused with it is quite corroborative to each other.
The killing of Sudhangshu Mohan Roy and the criminal acts committed in conjunction of the event by the accused and his accomplices were not isolated for which the accused Abul Kalam Azad @ Bachchu is found criminally responsible under section 4(1) of the Act of 1973. The criminal acts on part of the accused and his accomplices was certainly a part of attack against civilian population which qualifies the offence alleged as murder as crime against humanity as specified in section 3(2) (a) of the Act of 1973 which are punishable under section 20(2) read with section 3(1) of the Act. …(214, 233, 234 and 236)
Adjudication of charge No. 04
[Madhab Chandra Killing]
International Crimes (Tribunals) Act (XIX of 1973)
Sections 3(1), 3(2)(a), 4(1) and 20 (2)
Abul Kalam Azad @ Bachchu (absconded), a member of Razaker Force and subsequen-tly the local commander of Al-Badar Bahini or as a member of group of individuals being accompanied by 10/12 armed Razakers is alleged to have killed Madhab Chandra Biswas at village ‘Purura Nampara‘ under police station Nagarkanda district Faridpur by dragging him out of his house , on 16 May 1971 at about 15:00 , during the War of Liberation and thereby he has been charged for the physical participation and also for substantially contributing to the actual commission of the offence of ‘murder as crime against humanity’ by directing attack targeting the civilian Hindu population as specified in section 3(2) (a) of the Act which are punishable under section 20(2) read with section 3(1) of the Act.
Prosecution, in support of this charge, has adduced and examined as many as three witnesses as P.W.6, P.W.8 and P.W.10. They are live witnesses, who by deposing on dock have incriminated the accused with the commission of the offence of killing Madhab Chandra Biswas and Gyanendra. All the witnesses are from the crime village. Of them P.W.6 Bhakta Ranjan Biswas is the son of victim Madhab Chandra Biswas. The alleged offence of murder took place in broad day light and by dragging the victim out of his house. P.W.6 Bhakta Ranjan Biswas, 65 year old and son of victim Madhab Chandra Biswas has testified about his experience of killing his father, the event as narrated in charge no.04. In narrating the event he stated that he had seen the incidents [killings] and his neighbours Praf-ulla Kumar Mandol (P.W.8), Tusto Kumar Mondol (P.W.10), Sunil Kumar Mondal and many others witnessed it too.
Concatenation of incriminating facts narrated by the P.W.6, P.W.8 and P.W.10 coupled with relevant facts are suffice to prove the commission of the event of the offence of murder of Madhab Chandra Biswas and Gyannedra Mondol as crimes against humanity and mode of participation of the accused therewith. We have found that it has been established beyond reasonable doubt from the evidence of P.W.6 and P.W.8 and P.W.10 the residents of the crime village and live witnesses that on the date , time and in the manner an armed gang of Razakars led by accused Abul Kalam Azad @ Bachchu had launched attack to the house of Madhab Chandra Biswas who was a supporter of Awami League and after looting the ornaments and households etc., they dragged Madhab Chandra Biswas out of his house and took him to east bank of a pond of P.W.10 where accused Abul Kalam Azad @ Bachchu himself gunned down him to death and afterwards the accused also killed Gyanen-dra Mondol at the same spot. Attack targeting the Hindu village and killing of Awami League supporter indicates that the criminal acts of looting and murders were part of ‘systematic attack’ in furtherance of policy and plan directed against civilian population.
Thus, the criminal acts to the accomplish-hment of murder are characterized as the offence of crimes against humanity as specified in section 3(2) (a) of the Act as it was directed against civilian population. The accused, as has been proved, had directly participated to the commission of offence of murder as described in the charge No. 4 and thus he incurs individual criminal liability under section 4(1) of the Act and he is found guilty for perpetration of the offence as listed in charge no. 04 which is punishable under section 20(2) read with section 3(1) of the Act. …(237, 238, 255 and 256)
Adjudication of charge No. 05
[Committing Rape upon Devi Rani and Shova Rani]
International Crimes (Tribunals) Act (XIX of 1973)
Sections 3(1), 3(2)(a), 4(1) and 20 (2)
Abul Kalam Azad @ Bachchu (absconded), a member of Razaker Force and subsequently the local commander of Al-Badar Bahini and or as a member of group of individuals being accompanied by 10/12 armed Razakers is alleged to have attacked the house of Sudhir Biswas @ Gosai Pada Biswas of village ‘Natibodia’ (bvwUew`qv ) under police station Boalmari district Faridpur on 08 June 1971 at about 12:00 hrs , during the War of Liberation and then allegedly committed rape upon Devi Rani and Shova Rani and thereby he has been charged for the physical participation and also for substantially contributing to the actual commission of offence of ‘rape as crime against humanity’ by directing attack targeting the Hindu civilian population as specified in section 3(2) (a) of the Act which are punishable under section 20(2) read with section 3(1) of the Act.
Prosecution adduced and examined two witnesses as P.W.13 and P.W. 14 in support of this charge. P.W.13, Surabala Biswas, now 70-71 years old is the wife of brother of victims’ husbands. P.W.14, Binod Chandra Biswas is the brother of P.W.13’s husband. They have narrated the criminal acts perpetrated by accused Abul Kalam Azad @ Bachchu and his accomplices.
The matters which appear to have been proved from corroborative evidence of P.W.13 and P.W.14 are that on the date, time and in the manner accused Abul Kalam Azad @ Bachchu and his 10-12 accomplices attacked their village which was predomin-antly Hindu populated with frequent gun firing and with this the male members of their family remained in hiding inside a jute field adjacent to their house and then the gang attacking their house kept the female members encircled and from them Shova Rani and Devi Rani were segregated and the accused and some of his accomplices dragged them to the dwelling hut of Shova Rani and detained them for one and half hour (as deposed by P.W.13). The other female members were kept guarded by some of accomplices of accused Bachchu. The charge relates to commit rape upon Shova Rani and Devi Rani.
None of two witnesses has claimed to have witnessed the alleged rape or sexual abuse upon the victims. The offence of alleged rape is not an isolated crime. The context also is to be viewed together with the criminal acts done. The offence of committing rape particularly if it happened as a part of systematic attack in furtherance of policy and plan is not expected to have taken place in presence of anybody else. Besides, offence of rape or sexual abuse happens in sly. The situation as revealed also speaks sufficiently that it was not possible to see what was happening inside the room of Shova Rani. Thus the criminal acts of accused and his accomplices done to Shova Rani and Devi Rani have to be perceived from the entire facts and circumstance.
The context speaks that it was not possible for civilians to resist the armed perpetrators led by the accused who were actually meant to execute the policy and plan of the Pakistani army and the pro-Pakistan political organization which had acted as its key auxiliary organisation. The pattern of the attack and acts indicates that the gang targeted the house of the victims belonging to Hindu community, a part of civilian population and the accused and his co-perpetrators finding no male inmates at the crime site, approached to cause harm to female members of the family in furtherance of which accused Abul Kalam Azad @ Bachchu and some of his accomplices dragged the victims to Shova Rani’s room where they were kept detained and at that time the other female members were kept guarded by other accomplices outside the room. We thus inescapably consider it just to pen our view that the victims were sexually ravished and the accused cannot be exonerated from criminal liability of committing the offence of rape as crime against humanity as specified in section 3(2) (a) of the Act.
The accused Abul Kalam Azad @ Bachchu, as has been proved, had directly participa-ted to the commission of the offence of rape as described in the charge No.5 and thus he incurs individual criminal liability under section 4(1) of the Act and is found guilty for perpetration of the offence listed in charge No. 05 which is punishable under section 20(2) read with section 3(1) of the Act. …(257, 258, 268, 269, 273 and 274)
Adjudication of charge No.06
[Killing of Chitta Ranjan Das]
International Crimes (Tribunals) Act (XIX of 1973)
Sections 3(1), 3(2)(a), 4(1) and 20(2)
On 03 June 1971, during the War of Liberation you, Moulana Abul Kalam Azad @ Bachchu a member of Razaker Force and subsequently the local commander of Al-Badar Bahini and or as a member of group of individuals being accompanied by 10/12 armed Razakers launched an attack targeting the Hindu community of village ‘Fulbaria’ under police station Nagarkanda district Faridpur and started looting the house of civilians. In the course of the event, you and your 7/8 accomplices entering inside the house of Chitta Ranjan Das dragged him out and then you, by the rifle with you, gunned down him to death and thereby the accused has been charged for the physical participation and also for substantially contributing to the actual commission of offence of ‘murder as crime against huma-nity’ by directing attack targeting the Hindu civilian population as specified in section 3(2) (a) of the Act which are punishable under section 20(2) read with section 3(1) of the Act.
Three witnesses have been adduced and examined in support of this charge. All the three witnesses i.e P.W.2 Jotsna Rani Das, P.W.4 Dhala Matabbar and P.W.9 Nagen Chandra Mondol are the live witnesses. Of them P.W.2 is the wife of victim of the offence of murder. P.W.4 and P.W 9 are from the crime village and claim to have witnessed the accused accompanying the armed gang of Razakars at the crime site and have corroborated the version of P.W.2, as regard commission of the event of crime and participation of the accused therewith.
We have found from first part of testimony of P.W.4 that on seeing the event of killing Chitta Ranjan Das he (P.W.4) became frightened and had left the crime site. Thus, it was naturally not possible to witness the killing of Badal Debnath that took place after the event of killing Chitta Ranjan Das. P.W.2 Jotsna Rani Das, the eye witness of the event of killing her husband including the killing of Badal Debnath has stated that, Bachchu Razakar and his accomplices dragging the dead body of her husband and Badal Debnath tying their legs with a rope threw to Kumar River. Thus, the hearsay version of P.W.4 so far it relates to killing of Badal Debnath and throwing the dead body of Chitta Ranjan Das to Kumar River carries much probative value which adds corroboration to what has been stated by P.W.2.
Testimony of P.W.9, a live witness has sufficiently and believably corroborated P.W.2 the wife of victim Chitta Ranjan Das and has narrated the event incriminating the accused with the commission of the offence of alleged murder. As regard reason of recognizing the accused P.W.9 stated that he knew accused Abul Kalam Azad @ Bachchu as during 1970-71 he (P.W.9) used to purchase straw for his own ‘pan baroj’ from the house of accused’s uncle.
Having regard to the evidence of P.W.2, P.W.4 and P.W9 we are thus convinced in arriving at decision that the atrocious event of attack launched directing the crime village Phulbaria by the gang of armed Razakars led by accused Abul Kalam Azad @ Bachchu on the date time and in the manner has been proved beyond reasonable doubt.
The accused Abul Kalam Azad @ Bachchu being accompanied by his armed accompl-ices, as has been proved, had directly participated to the commission of the offence of murder and the gang of co-perpetrators led by the accused indubitably had committed the criminal acts as part of the attack directing the civilians belonging to Hindu community and thereby the accused Abul Kalam Azad @ Bachchu is found to have incurred individual criminal liability under section 4(1) of the Act and found guilty for committing the offence of murder as crime against humanity as specified in section 3(2) (a) of the Act which is punishable under section 20(2) read with section 3(1) of the Act .
Adjudication of charge No.08
[Anjalli Das abduction and torture]
International Crimes (Tribunals) Act (XIX of 1973)
Sections 3(1), 3(2)(a), 4(1) and 20 (2)
Abul Kalam Azad @ Bachchu (absconded), a member of Razaker Force and subsequently the local commander of Al-Badar Bahini and or as a member of group of individuals, being accompanied by 7/8 armed Razakers entering inside the house of Guru Das, a civilian village dweller of village ‘Ujirpur Bazarpara’ (DwRicyi evRvicvov) under police station Saltha district Faridpur is alleged to have abducted Anjali Das (18) Rani of the crime village on 18 May 1971 at about 10:00 hrs, during the War of Liberation and kept her confined and tortured and thereby the accused has been charged for the physical participation and also for substantially contributing to the actual commission of offence of ‘abduction, confinement and torture as crimes against humanity’ by directing attack targeting the Hindu civilian population as specified in section 3(2) (a) of the Act which are punishable under section 20(2) read with section 3(1) of the Act.
Prosecution examined three witnesses in support of this charge. P.W.11 Deb Kumar Das is the brother of victim Anjali Das and P.W.12 was a neighbour of victim at the relevant time. P.W.16 is a hearsay witness and not from the crime village Ujirpur, Faridpur. They have testified as to who and how abducted Anjali Das and finally what happened to her.
From evidence of P.W.11 and P.W. 12 we have found it proved that on the date time and in the manner accused Abul Kalam Azad @ Bachchu being accompanied by armed accomplices launched attack to the house of Anjali Das and defying oral confrontation they forcibly took away Anjali Das with them. That is to say, the accused is found to have directly participated to the act of abduction alleged. It remains unshaken too.
It is also proved that with the intervention of local Muslim elites eventually 7-8 days after abduction the victim was released. Where she was kept confined? P.W.12 stated in cross-examination that later on he heard that the victim was kept confined at the house of Chan Kazi. According to P.W.11, request was made to said Chan Kazi by the local Muslim elites for releasing Anjali Das. Who is this Chan Kazi? Admittedly he is the father-in-law of the accused. It sufficiently indicates that the accused had substantially contributed and facilitated to the act of confinement of the victim Anjali Das with full knowledge.
Since it is proved that Anjali Das was forcibly abducted and taken away by the accused and his cohorts from their house defying oral resistance, it may be lawfully presumed that the accused substantially contributed in keeping the victim confined at a place selected by him. At the same time it may also be validly presumed that the purpose of keeping the victim under such confinement for 7-8 days was not of course anything lawful and certainly mental and physical harm including sexual abuse was caused to her that resulted in her severe sickness as stated by P.W.12.
The fact that on the very day of her release victim Anjali Das committed suicide as Mohammad Kazi and his accomplices attacked their house to abduct her again is proved. Obviously such second attempt of abducting the traumatized victim Anjali Das made her panicked and frightened which eventually forced her to commit suicide. Who is this Mohammad Kazi? As it is found, he was the brother-in-law of the accused. That is to say, the second attempt to take away the victim forcibly was not done without the knowledge of the accused. Rather, the accused may be presumed to have substantially contributed and abetted in launching such second attack.
We have found that accused Abul Kalam Azad @ Bachchu was a potential armed member of Razakar force. He is found to have launched attack being accompanied by his armed cohorts with intent to commit criminal acts constituting the offence of crimes against humanity. The accused, in furtherance of policy and plan of the Pakistani army and the organization collaborating it launched such attack directing the Hindu community, a part of civilian population and the criminal acts were done in context of the war of liberation in 1971. Therefore, the accused Abul Kalam Azad @ Bachchu is found to have incurred criminal liability under section 4(1) of the Act and found guilty for committing the offence of abduction, confinement and torture as crimes against humanity as specified in section 3(2) (a) of the Act which is punishable under section 20(2) read with section 3(1) of the Act . …(389, 390, 302-306)
International Crimes (Tribunals) Act (XIX of 1973)
Section 3(2)(a)
Crimes against humanity- Proof of in determining the fact as to whether the atrocious acts which are already proved to have been committed were directed against Bengali civilian population constituting the crimes against humanity in 1971 during the War of Liberation it is to be considered that the criminal acts committed in violation of customary international law constituting the offences enumerated in section 3(2)(a) of the Act of 1973 were connected to some policy of the government or an organization. It is to be noted too that such policy and plan are not the required elements to constitute the offence of crimes against humanity. These may be taken into consideration as factors for the purpose of deciding the context upon which the offences were committed. It is indeed a history now that the Pakistani army with the aid of its auxiliary forces, pro-Pakistan political organizations implemented the commission of atrocities in 1971 in the territory of Bangladesh in furtherance of following policies:
- Policy was to target the self-determined Bangladeshi civilian population
- High level political or military authorities, resources military or other were involved to impleme-nt the policy
- Auxiliary forces were established in aiding the implementation of the policy
- The regular and continuous horrific pattern of atrocities perpetrated against the targeted non combatant civilian popula-tion.
The above facts in relation to policies are not only widely known but also beyond reasonable dispute. The context itself reflec-ted from above policies is sufficient to prove that the offences of crimes against humanity as specified in section 3(2)(a) of the Act of 1973 were the inevitable effect of part of systematic attack directed against civilian population. This view finds support from the observation made by the Trial Chamber of ICTY in the case of Blaskic as mentioned above. It is quite coherent from the facts of common knowledge involving the backdrop of our war of liberation for the cause of self determination that the Pakistani armed force, in execution of government’s plan and policy in collaboration with the local anti liberation section belonging to JEI and its student wing ICS and auxiliary forces, had to deploy public and private resources and target of such policy and plan was the unarmed civilian Bangalee population, pro-liberation people, Hindu community and pursuant to such plan and policy atrocities were committed to them as a ‘part of a regular pattern basis’ through out the long nine months of war of liberation. It may be legitimately inferred from the phrase “directed against any civilian population” as contained in the Act of 1973 that the acts of the accused comprise part of a pattern of ‘systematic’ crimes directed against civilian population. Therefore, the crimes for which the accused has been charged and found guilty were not isolated crimes, rather these were part of organized and planned attack intended to commit the offence of crimes against humanity as enumerated in section 3(2) of the Act, in furtherance of policy and plan. …(312, 314, 315, 316 and 318)
International Crimes (Tribunals) Act (XIX of 1973)
Section 3(2)(c) (i),
Section 3(2) (c)(i) of the Act of 1973 defines ‘Genocide’ as an act committed with intent to destroy, in whole or in part, a national, ethnic, racial, religious or political group, such as, killing members of the group. From the charge no.7 framed we find that the criminal acts narrated therein were directed against the Hindu community which falls within the meaning of ‘religious group’ or a particular ‘members of the group’, with intent to destroy it, either whole or in part. From testimony of most of witnesses it has been established that almost instantly after accomplishment of crimes targeting the Hindu community, the members of this community who were residents of the crime villages deported to India, in fear of further fatality and harms. This amply indicates the ‘genocidal intent’ of causing massive destru-ction and killing of civilians belonging to the Hindu community, as has been narrated in charge no. 7.
In the case in hand, it is abundantly clear that the accused absconded to evade the process of justice. Had the accused was not involved in the crime he would have certainly prepared to face the trial. But not only he has absconded instantly after issuance of warrant of arrest by this Tribunal but he has even left the country as reported by the enforcement or executing authority. The accused cannot be considered merely as an absentee accused. He is an absconded accused. Evading trial for the offences of which he has been charged with signifies his culpability too. The accused deliberately waived his right to be present at trial. This conduct adds further to his culpability. …(319 and 330)
VERDICT OF SENTENCE
We have taken due notice of the intrinsic gravity of the offence of ‘genocide’ and murders as ‘crimes against humanity’ being offences which are particularly shocking to the conscience of mankind. We are of agreed view that justice be meet with if a single ‘sentence of death’ under section 20(2) of the Act of 1973 is awarded to accused Abul Kalam Azad @ Bachchu for convictions relating to the offences of murder as ‘crimes against humanity’ (listed in charge Nos. 3, 4 and 6) and for the offence of ‘genocide’ (listed in charge no.7) of which he has been found guilty beyond reasonable doubt.
However, we are of further view that considering the proportionate to the gravity of offences the accused Abul Kalam Azad @ Bachchu deserves imprisonment i.e. lesser punishment for convictions relating to the remaining offences as crimes against humanity (listed in charge Nos. 1, 5 and 8). Accordingly, we do hereby render the following ORDER on SENTENCE.
Hence, it is
ORDERED
That the accused Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu son of late Abdus Salam Mia & late Magfura Khatun of village-Barakhardia (Choi ani), Police Station- Saltha, District-Faridpur at present sector no. 07, road no. 33, house no. 06, Police Station–Uttara, DMP, Dhaka and ‘Azad Villa’, 279/6 Chan Para, Uttarkhan, Dhaka is found guilty of the offences of ‘crimes against humanity’ (listed in charge no.s 3,4 and 6) and for the offence of ‘genocide’(listed in charge no.7) and he be convicted and sentenced to death and be hanged by the neck till he is dead under section 20(2) of the International Crimes (Tribunals) Act, 1973.
No separate sentence of imprisonment is being awarded to the accused Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu for convictions relating to the offences of crimes against humanity as listed in charge nos. 1, 5 and 8 of which too he has been found guilty as the ‘sentence of death’ has been awarded to him in respect of four other charges as mentioned above.
The accused Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu is however found not guilty of offence of crimes against humanity as listed in charge no.2 and he be acquitted thereof.
Since the convicted accused has been absconding the ‘sentence of death’ as awarded above shall be executed after causing his arrest or when he surrenders before the Tribunal, whichever is earlier. The sentence of death awarded as above under section 20(2) of the International Crimes (Tribunals) Act, 1973 [The Act No. XIX of 1973] shall be carried out and executed in accordance with the order of the government as required under section 20(3) of the said Act. …(333 and 334).
For the Prosecution:
Mr. Golam Arief Tipoo, Chief Prosecutor
Mr. Syed Haider Ali, Prosecutor
Mr. Shahidur Rahman, Prosecutor
For the Accused (Absconded):
Mr. Abdus Shukur Khan,
State Defence Counsel Advocate, Bangladesh Supreme Court
JUDGMENT
[Under section 20(1) of the Act XIX of 1973]
I. Opening words
In the judicial history of Bangladesh, it is indeed the historic occasion that today this Tribunal (ICT-2), a lawfully constituted domestic judicial forum, after dealing with the matter of prosecution and trial of internatio-nally recognized crimes i.e. crimes against humanity, genocide which were perpetrated in 1971 in the territory of Bangladesh, during the War of Liberation is going to deliver its first verdict. At all stages of proceedings the prosecution and the defence have made laudable efforts extending their precious arguments on academic and legal aspects including citation of the evolved jurisprudence. It inevitably has inspired us to address the legal issues closely involved in the case, together with the factual aspects as well. We take the privilege to appreciate their significant endeavor.
In delivering the verdict we have deemed it necessary in highlighting some issues, in addition to legal and factual aspects, relating to historical and contextual background, chara-cterizeation of crimes, commencement of proceedings, procedural history reflecting the entire proceedings, charges framed, in brief, and the laws applicable to the case for the purpose of determining culpability of the accused. Next, together with the factual aspects we have made effort to address the legal issues involved and then discuss and evaluate evidence adduced in relation to charges independently and finally have penned our finding on culpability of accused.
Now, having regard to section 10(1) (j), section 20(1) and section 20(2) of the International Crimes (Tribunals) Act, 1973[Act No. XIX of 1973] this ‘Tribunal’ known as International Crimes Tribunal-2 (ICT-2) hereby renders and pronouncing the following judgment.
II. Commencement of proceedings
- 1. The Chief Prosecutor, on the basis of the report and documents submitted therewith by the Investigation Agency, after completion of investigation, submitted the ‘Formal Charge’ on 02.9.2012 under section 9(1) of the Act of 1973[hereinafter referred to as the ‘Act of 1973’] before this Tribunal alleging that the accused Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu as a significant member of Razaker, the auxiliary force and also as an ‘individual’, had committed the offences of crimes against humanity, genocide including the offence of providing contribution and moral support to the accomplishment of such crimes in different places of Faridpur district during the period of War of Liberation in 1971 and thereby proceedings commenced.
- 2. Thereafter, the Tribunal, under Rule 29(1) of the Rules of Procedure[hereinafter referred to as ‘ROP’], took cognizance of offences as mentioned in section 3(2) (a)(b)(g)(h) of the Act of 1973 and issued warrant of arrest for causing appearance of the accused as required under Rule 30 of the ROP. But the warrant could not be executed as the accused remained absconded. Thereafter, in compliance of legal requirement for holding trial in absentia by appointing state defence counsel to defend the absconded accused, the Tribunal on hearing both sides on charge framing matter framed 08 charges against the accused Abul Kalam Azad @ Bachchu by its order dated 04 November 2012 and thus the trial commenced.
III. Historical Background
- 3. Atrocious and horrendous crimes were committed during the nine-month-long war of liberation, which resulted in the birth of Bangladesh, an independent state. Some three million people were killed, nearly quarter million women were raped and over 10 million people were forced to flee to India to escape brutal persecution at home, during the nine-month battle and struggle of Bangalee nation. The perpetrators of the crimes could not be brought to book, and this left a deep wound on the country’s political psyche and the whole nation. The impunity they enjoyed held back political stability, saw the ascend of militancy, and destroyed the nation’s Constitution.
- 4. A well-known researcher on genocide, R.J. Rummel, in his book Statistics of Democide: Genocide and Mass Murder Since 1900, states:
“In East Pakistan [General Agha Mohammed Yahya Khan and his top generals] also planned to murder its Bengali intellectual, cultural, and political elite. They also planned to indiscrimi-nately murder hundreds of thousands of its Hindus and drive the rest into India. And they planned to destroy its economic base to insure that it would be subordinate to West Pakistan for at least a generation to come.”
- 5. Women were tortured, raped and killed. With the help of its local collaborators, the Pakistan military kept numerous Bengali women as sex slaves inside their camps and cantonments. Susan Brownmiller, who condu-cted a detailed study, has estimated the number of raped women at over 400,000.
[Source: http://bangladeshwatchdog1.wordpress.com/razakars/]
- 6. In August, 1947, the partition of British India based on two-nation theory, gave birth to two new states, one a secular state named India and the other the Islamic Republic of Pakistan. The western zone was eventually named West Pakistan and the eastern zone was named East Pakistan, which is now Bangladesh.
- 7. In 1952 the Pakistani authorities attempt-ted to impose ‘Urdu’ as the only State language of Pakistan ignoring Bangla, the language of the majority population of Pakistan. The people of the then East Pakistan started movement to get Bangla recognized as a state language thus marking the beginning of language movement that eventually turned to the movement for greater autonomy and self-determination and eventually independence.
- 8. In the general election of 1970, the Awami League under the leadership of Bangabandhu Sheikh Mujibur Rahman became the majority party of Pakistan. Despite this overwhelming majority, Pakistan Government did not hand over power to the leader of the majority party as democratic norms required. As a result, movement started in this part of Pakistan and Bangabandhu Sheikh Mujibur Rahman in his historic speech of 7th March, 1971, called on the people of Bangladesh to strive for independence if people’s verdict is not respected and power is not handed over to the leader of the majority party. In the early hour of 26th March, following the onslaught of “Operation Search Light” by the Pakistani Military on 25th March, Bangabandhu declared Bangladesh independent immediately before he was arrested by the Pakistani authorities.
- 9. The massacres started with program called “Operation Searchlight,” which was designed to disarm and liquidate Bengali policemen, soldiers and military officers, to arrest and kill nationalist Bengali politicians, soldiers and military officers, to arrest and kill and round up professionals, intellectuals, and students (Siddiq 1997 and Safiullah 1989). Actions in concert with its local collaborator militias, Razakar, Al-badar and Jamat E Islami (JEI) were intended to stamp out Bengali national li