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Aiding and abetting law uk hakka

Now, having regard to section 10 1 j , section 20 1 and section 20 2 of the International Crimes Tribunals Act, [Act No. Commencement of proceedings 1. On 18 December , the Prosecution filed the 'formal charge' in the form of petition as required under section 9 1 of the Act of against accused Abdul Quader Molla. After providing due opportunity of preparation to accused, 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 The Tribunal after hearing both sides and on perusal of the formal charge, documents and statement of witnesses framed six charges relating to the commission of 'crimes against humanity' as specified in section 3 2 a of the Act of or in the alternative for 'complicity in committing such crimes' as specified in section 3 2 a g h of the said Act.

The charges so framed were read out and explained to the accused Abdul Qauder Molla in open court when he pleaded not guilty and claimed to be tried and thus the trial started. Introductory Words 2. International Crimes Tribunals Act, the Act XIX of [ hereinafter referred to as 'the Act of ] is an ex-post facto domestic legislation enacted in and after significant updating the ICTA through amendment in , the present government has constituted the Tribunal 1st Tribunal on 25 March The 2nd Tribunal has been set up on 22 March The degree of fairness as has been contemplated in the Act and the Rules of Procedure ROP formulated by the Tribunals under the powers conferred in section 22 of the principal Act are to be assessed with reference to the national wishes such as, the long denial of justice to the victims of the atrocities committed during war of liberation and the nation as a whole.

There should be no ambiguity that even under retrospective legislation Act XIX enacted in initiation to prosecute crimes against humanity, genocide and system crimes committed in violation of customary international law is fairly permitted.

The Act of Bangladesh has the merit and mechanism of ensuring the standard of safeguards recognised universally to be provided to the person accused of crimes against humanity. Jurisdiction of the Tribunal 5. The Act of is meant to prosecute, try and punish not only the armed forces but also the perpetrators who belonged to ' auxiliary forces ', or who committed the offence as an ' individual ' or a ' group of individuals ' and nowhere the Act says that without prosecuting the 'armed forces' Pakistani the person or persons having any other capacity specified in section 3 1 of the Act of cannot be prosecuted.

Rather, it is manifested from section 3 1 of the Act of that even any person individual or group of individuals , if he is prima facie found individually criminally responsible for the offence s , can be brought to justice under the Act of Thus, the Tribunal set up under the Act of are absolutely domestic Tribunal but meant to try internationally recognised crimes committed in violation of customary international law during the war of liberation in in the territory of Bangladesh.

Merely for the reason that the Tribunal is preceded by the word "international" and possessed jurisdiction over crimes such as Crimes against Humanity, Crimes against Peace, Genocide, and War Crimes, it will be wrong to assume that the Tribunal must be treated as an ''International Tribunal'' V. Brief Historical Background 6. Atrocious and dreadful crimes were committed during the nine-month-long war of liberation in , 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 take refuge in 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 an unfathomable abrasion on the country's political awareness and the whole nation. The impunity they enjoyed held back political stability, saw the ascend of militancy, and destroyed the nation's Constitution.

A well-known researcher on genocide, R. They also planned to indiscriminately 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.

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 conducted a detailed study, has estimated the number of raped women at over , In August, , 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 named West Pakistan and the eastern zone was named East Pakistan, which is now Bangladesh. In the Pakistani authorities attempted 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 and eventually turned to the movement for greater autonomy and self-determination and finally independence.

The undisputed history goes on to portray that in the general election of , the Awami League under the leadership of Bangabandhu Sheikh Mujibur Rahman became the majority party of Pakistan. But defying the democratic norms Pakistan Government did not care to respect this overwhelming majority. As a result, movement started in the territory of this part of Pakistan and Bangabandhu Sheikh Mujibur Rahman in his historic speech of 7th March, , called on the Bangalee nation to struggle for independence if people's verdict is not respected.

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. The massacres started with program called " Operation Searchlight ," which was designed to deactivate 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 and Safiullah The Pakistan government and the military setup number of auxiliary forces such as the Razakars, the Al-Badar, the Al-Shams, the Peace Committee etc, essentially to act as a team with the Pakistani occupation army in identifying and eliminating all those who were perceived to be pro-liberation, individuals belonging to minority religious groups especially the Hindus, political groups belonging to Awami League and Bangalee intellectuals and unarmed civilian population of Bangladesh.

The West's army had the support of many of East Pakistan's Islamist parties. They included Jamaat-e-Islami, still Bangladesh's largest Islamist party, which has a student wing that manned a pro-army paramilitary body, called Al Badr. Despite the world press having supplied a clear exposition of facts, the people do not appear to have raised that at this moment--and again in Asia--millions and millions of human beings face destruction of their life and mother land A pathetic view of the tragedy is given to us by the fact that in a single night in the city of Dacca were killed 50, persons by the invading army.

Between 26 March--the date of invasion-- and this moment, the dead reach more than a million, and every day 30, persons leave East Pakistan and take refuge in Indian territory. Jamat E Islami JEI and some other pro-Pakistan political organizations substantially contributed in creating these para-militias forces auxiliary force for combating the unarmed Bangalee civilians, in the name of protecting Pakistan.

Actions in concert with its local collaborator militias, Razakar, Al-Badar and Jamat E Islami JEI and other elements of pro-Pakistani political parties were intended to stamp out Bangalee national liberation movement and to mash the national feelings and aspirations of the Bangalee nation.

Incontrovertibly the way to self-determination for the Bangalee nation was strenuous, swabbed with immense blood, strives and sacrifices. In the present-day world history, conceivably no nation paid as extremely as the Bangalee nation did for its self-determination. Despite the above historic truth as to antagonistic and atrocious role of JEI and other pro-Pakistan political organizations section 3 1 of the Act of remains silent as regards responsibility of any 'organisation' for the atrocities committed in the territory of Bangladesh in war of liberation.

Brief account of the accused In , according to the prosecution, he organized the formation of Al-Badar Bahini with the students belonging to Islami Chatra Sangha ICS which allegedly being in close alliance with the Pakistani occupation army and Jamat E Islami actively aided, abetted, facilitated and substantially assisted, contributed and provided moral support and encouragement in committing appalling atrocities in in the territory of Bangladesh. Procedural History At pre-trial stage, the Chief Prosecutor submitted an application before the ICT-1 under Rule 9 1 of the Rules of Procedure seeking arrest of the accused Abdul Quader Molla for the purpose of effective and proper investigation.

At the time of hearing it was learnt that the accused was already in custody in connection with some other case. Thereafter, pursuant to the production warrant issued by the Tribunal Tribunal-1 the accused was produced before the Tribunal Tribunal-1 by the prison authority and then he was shown arrested as an accused before the Tribunal. Accordingly, since The Tribunal Tribunal-1 , since his detention, has entertained a number of applications seeking bail filed on behalf of the accused and the same were disposed of in accordance with law and on hearing both sides.

The Tribunal-2 also allowed the learned defence counsels to have privileged communication with the accused in custody, as and when they prayed for. The Tribunal Tribunal-1 took cognizance of offences against the accused having found prima facie case in consideration of the documents together with the Formal Charge submitted by the prosecution.

Prosecution was then directed to furnish copies of the Formal Charge and documents submitted there with which it intends to rely upon for supplying the same to the accused for preparation of defence. At this stage, the Tribunal-1, on application filed by the Chief Prosecutor, ordered for transmission of the case record to this Tribunal-2 under section 11A 1 of the Act of This Tribunal-2 ICT-2 , thereafter, received the case record on Earlier, the case was at stage of hearing the charge framing matter.

Thus, this Tribunal-2 had to hear the matter afresh as required under section 11A 2 of the Act. Mohammad Ali made his submissions showing his argument favourable to framing charges against the accused, in the light of the Formal Charge together with the statement of witnesses and documents submitted therewith. While Mr.

Abdur Razzak, the learned senior counsel appearing for the accused, refuting prosecution's submission, advanced his detailed submission both on factual and legal aspects and finally emphasized to allow the prayer to discharge the accused. On hearing both sides and on perusal of the formal charge, statement of witnesses and documents submitted therewith this Tribunal ICT-2 , finally, framed six charges by its order dated 28 May and then by providing due opportunity for getting preparation by the defence Tribunal-2 fixed Defence preferred an application on On hearing both sides, the Tribunal modified its order framing charges by an order dated Defence however submitted a list of its witnesses containing name of witnesses together with documents and materials upon which it intended to rely upon as required under section 9 5 of the Act.

Thereafter, the prosecution after placing its opening statement as required under section 10 1 d of the Act of started adducing witnesses. However, prosecution adduced and examined in all 12 witnesses including two Investigating Officers.

A total 04 exhibits were admitted into evidence. This Tribunal on hearing both sides on an application submitted by the prosecution seeking limitation of defence witnesses rendered an order dated 05 November limiting defence witnesses to only 06 witnesses, keeping the matter of 'defence case' and 'plea of alibi' into account. After passing the order dated 5. Defence however, started bringing frequent applications on similar matter i. In this process, the defence filed an application seeking re-call of the order limiting defence witnesses.

Tribunal rejected it, after hearing both sides by its order dated 12 November The defence again initiated a delayed application seeking review of order dated On hearing both sides Tribunal rejected it by giving a reasoned order dated Finally, the defence brought an application seeking permission to adduce and examine six more additional witnesses, after closure of examination of six defence witnesses.

The Tribunal rejected it with cost as it appeared to be an application seeking same favour or relief, though in different form. The Tribunal in its reasoned orders on this issue mainly focused on the matter that no specific defence case could have been extracted from the trend of cross-examination of prosecution witnesses excepting the ' plea of alibi ' and it considered appropriate to allow the defence to examine six witnesses from the list it submitted under section 9 5 of the Act and by a subsequent order Tribunal by relaxing condition permitted the defence to adduce and examine its witnesses ' preferably ' from the list it submitted by modifying its order dated 5.

Prosecution duly cross-examined the DWs. Thus the trial concluded on Thereafter, prosecution's summing up of case under section 10 1 i of the Act of was heard for 09 and half hours while the defence placed summing up of its own case by taking about 25 hours. At the stage of summing up of defence case, defence filed an application seeking direction to the museum of Miprur Jallad Khana for production of statement made and archived therein by 03 prosecution witnesses and one defence witness.

The Tribunal disposed of the same with its observation that the matter would be taken into notice at the time of its final verdict. In this way on conclusion of summing up cases under section 10 1 i of the Act of the Tribunal-2 kept the matter of delivery and pronouncement of judgment under section 10 1 j read with section 20 1 of the Act under CAV.

Applicable laws The proceedings before the Tribunal shall be guided by the International Crimes Tribunals Act , the Rules of Procedure formulated by the Tribunal under the powers given in section 22 of the Act. Section 23 of the Act of prohibits the applicability of the Code of Criminal Procedure, and the Evidence Act Tribunal is authorized to take judicial notice of fact of common knowledge which is not needed to be proved by adducing evidence [ Section 19 4 of the Act ].

The Tribunal may admit any evidence [ Section 19 1 of the Act ]. The Tribunal shall have discretion to consider hearsay evidence too by weighing its probative value [ Rule 56 2 ]. The defence shall have liberty to cross-examine prosecution witness on his credibility and to take contradiction of the evidence given by him [ Rule 53 ii ]. Cross-examination is significant in confronting evidence. The Act of provides right of accused to cross-examine the prosecution witnesses.

The Tribunal may receive in evidence statement of witness recorded by Magistrate or Investigation Officer only when the witness who has subsequently died or whose attendance cannot be procured without an amount of delay or expense which the Tribunal considers unreasonable [ Section 19 2 of the Act ]. But in the case in hand no such statement of witness has been received.

The defence duly cross-examined all the prosecution witnesses. Both the Act of and the Rules ROP have adequately ensured the universally recognised rights of the defence. Additionally, the Tribunal, in exercise of its discretion and inherent powers as contained in Rule 46A of the ROP, has adopted numerous practices for ensuring fair trial by providing all possible rights of the accused.

The Tribunal however is not precluded from seeking guidance from international reference and relevant jurisprudence, if needed to resolve charges and culpability of the accused. Right to Disclosure Article 9 2 ICCPR contains - " Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. Further, Rule 18 4 of ICT-BD provides " The Chief prosecutor shall file extra copies of formal charge and copies of other documents for supplying the same to the accused s which the prosecution intends to rely upon in support of such charges so that the accused can prepare his defence.

Thus, right to disclosure has been adequately ensured so that the suspect person can have fair opportunity to defend his own interest. The Tribunal has allowed privileged communications between the accused and his engaged counsels, in prison as and when prayed for. Defence has been allowed to inspect the 'Investigation Report' allowing its prayer. Fairness is the idea of doing what's best. It may not be perfect, but it's the good and decent thing to do. It requires being level-headed, uniform and customary.

Adequate time to get preparation of defense is one of key rights that signifies the fairness of the proceedings. Article 14 3 b of the ICCPR states, "To have adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing.

What we see in the Act of ? This provision has been attuned in Section 16 2 of the Act of that reads, "A copy of the formal charge and a copy of each of the documents lodged with the formal charge shall be furnished to the accused person at a reasonable time before the trial; and in case of any difficulty in furnishing copies of the documents, reasonable opportunity for inspection shall be given to the accused person in such manner as the Tribunal may decide.

The ' three weeks ' time is given to the defense to prepare. Section 9 3 of the Act of explicitly provides that 'at least three weeks' before the commencement of the trial, the Chief prosecutor shall have to furnish a list of witnesses along with the copies of recorded statement and documents upon which it intends to rely upon. Additionally, what time is considered adequate depends on the circumstances of the case. The Tribunal, through judicial practices, has already developed the notion that each party must have a reasonable opportunity to defend its interests.

It is to be mentioned that there has been not a single instance that any of accused person has been denied any of his right to have time necessary for preparation of his defense or interest. In trying the offences under the general law, the court of law in our country does not rely on our own standards only, it considers settled and recognised jurisprudence from around the world. So, even in absence of any explicit provision on this aspect the Tribunal , ethically, must see what happened in similar situations in other courts and what they have done, and take those decisions into account.

The ICT-2 guarantees the required procedural protections of the defendant's right to fair trial both in pre-trial phase and during trial The Act of and the Rules ROP framed there under explicitly compatible with the fair trial concept contained in the ICCPR. The above rights of defense and procedure given in the Act of and the Rules of Procedure are the manifestations of the "due process of law" and "fair trial" which make the legislation of more compassionate, jurisprudentially significance and legally valid.

In addition to ensuring the above recognised rights to accused the Tribunal-2 ICT-2 has adopted the practice by ensuring it that at the time of interrogation defense counsel and a doctor shall be present in a room adjacent to that where the accused is interrogated and during break time they are allowed to consult the accused, despite the fact that statement made to investigation officer shall not be admissible in evidence.

Privileged communications between the accused and his engaged counsels have been allowed as and when prayed for. What time is considered adequate depends on the circumstances of the case. The Tribunal-2 is quite conscious ensuring this key right of defense. The Tribunal-2, through judicial practices, has already developed the notion that each party must have a reasonable opportunity to defend its interests. However, from the aforementioned discussion it reveals that all the key rights have been adequately ensured under the International Crimes Tribunals Act, and we will find that those fairly correspond to the ICCPR.

Universally Recognised Rights of Victims The Tribunal notes that without fixing attention only to the rights of defence responsiveness also to be provided to the rights of victims of crimes as well. Each State Party to the present Covenant undertakes: a To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; b To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; c To ensure that the competent authorities shall enforce such remedies when granted.

The victims of atrocities committed in within the territory of Bangladesh in violation of customary international law need justice to heal. Bangladesh considers that the right to remedy should also belong to victims of war crimes. The State has an obligation to remedy serious human rights violations.

Bangladesh recognizes Article 8 of the Universal Declaration of Human Rights and Article 2 3 of the International Covenant of Civil and Political Rights which ensure the right to an effective remedy for the violation of human rights. Summing up of Cases i Summing up of the Prosecution Case Mohammad Ali, the learned Prosecutor started summing up of its own case on 17 December At the outset, in his introductory submission, submitted that prosecution and trial of persons responsible for atrocities committed during the War of Liberation is the demand of nation to come out from the culture of impunity and also to provide redress the sufferings caused to the victims and their relatives.

The learned Prosecutor paying tribute and homage to the Father of Nation Bangabandhu Sheikh Mujibur Rahman and millions of martyrs went on to place a brief portrayal of historical background that pushed the Bengali nation to the movement of self-determination which eventually got shape of War of Liberation.

The then Pakistani government and the occupation troops' policy was to resist the War of Liberation in its embryo and as such 'operation search light' was executed in Dhaka causing thousands of killing and mass destruction, with the aid and organizational support mainly from Jamat-E-Islam JEI , its student wing Islami Chatra Sangha ICS and pro-Pakistan political parties and individuals. Respecting the preamble of the International Crimes Tribunals Act The Act XIX of the government has constituted this Tribunal for prosecution, trial and punishment of persons for genocide, crimes against humanity committed in the territory of Bangladesh in Learned Prosecutor, further submitted that in furtherance of 'operation search light' atrocities had been committed in the locality of Mirpur and adjacent areas of Dhaka city as listed in the charges framed.

In committing atrocities as have been charged were perpetrated by the armed gang led by accused Abdul Quader Molla, in furtherance of common design. The case concerns events of crimes against humanity that took place on six different places and on different dates. Of six charges three speak of his physical participation in committing crimes and in respect of remaining charges he had aided and substantially contributed to the commission of crimes.

Prosecution, out of 40 witnesses as cited by the Investigation Officer and 09 additional witnesses, as permitted by the Tribunal under section 9 4 of the Act produced and examined in all 12 witnesses including the IO. It has been submitted that not the number but the quality of witnesses is to be considered and prosecution considered it sufficient to produce and examine such number of witnesses to prove the charges and it has been able to prove it beyond reasonable doubt.

As regards evidence made by the P. Testimony of P. Mirpur was chiefly Bihari populated locality and for the reason of horrific situation prevailing at that time it was not possible for a Bengali person to witness the events. It would reveal from evidence of P. Thus, the accused formed a 'force' consisting of local Biharis on his own initiation and naturally he had effective control on its members. When in furtherance of 'operation search light' the local Biharis started committing atrocities in the area of Mirpur, for obvious reason, the accused had conscious knowledge of it and he too aided, abetted and substantially facilitated to the commission of those crime.

On the wake of sudden atrocious activities targeting Bengali population in Mirpur most of the local Bengali people who were very few in number, being frightened, had left the locality and as such there was no practical chance for them to remain present at the crime sites and to witness the events. Therefore, it was natural to learn the incidents and involvement of perpetrators thereof.

Rather learning the incidents and complicity of perpetrators from general people was natural. All these valid reasons lawfully justify to act on the hearsay evidence to determine complicity of accused Abdul Quader Molla who had led local Biharis to the accomplishment of the crimes described in charge nos.

The learned prosecutor further added that the Tribunal is not bound by the technical rules of evidence and it shall accord in its discretion due consideration to hearsay evidence on weighing its probative value. Next, it has been argued that even evidence of a single witness is enough to prove a charge if it inspires credence.

In relation to charge no. It also strengthens the fact of his complicity with the incident of 'Gahtarchar mass killing'. Accused Abdul Quader Molla accompanied Pakistani occupation army and local accomplices with intent to participate and carry out the operation causing killing of 67 Bengali unarmed civilians.

The learned Prosecutor continued to argue, on factual aspect that with intent to annihilate the pro-liberation Bengali civilians the Pakistani occupation army and their local accomplices including accused Abdul Quader Molla launched attack to Alubdi village nearer to Mirpur locality and caused killing of about Bengali unarmed civilians. It was 'genocide' as the perpetrators with intent to destroy the Bengali Population, in whole or in part, killed a significant number of members of Bengali Population of a particular village.

The operation was destructive in nature and instantly after the massacre the remaining civilians were compelled to flee leaving their homes and property. They were internally displaced in consequence of destructive pattern of the organized attack.

Thus, the incident truely falls within the definition of 'genocide' as specified in section 3 2 c i of the Act of instead of 'crimes against humanity'. They are quite natural and credible witnesses. Litigations might have been brought against P. But merely for this reason his credibility cannot be questioned. Rather, it is to be weighed as to how far truth has been demonstrated from his evidence.

Merely for the reason that she is a single witness in support of this charge his sworn testimony cannot be excluded. It has bee argued on this legal issue by the learned senior counsel for the defence Mr. Abdur Razzak that there has been no limitation in bringing criminal prosecution but inordinate delay of long 40 years must be explained. But the prosecution remained totally silent without offering any explanation on this issue in its formal charge submitted under section 9 1 of the Act which is the foundation of the case.

The Act of and first amendment of the constitution will go to show that intention of the framers of the legislation was to prosecute and try the listed war criminals of Pakistan armed force and not the civilians as the phrase 'including any person' was replaced by the phrase 'any person' belonging to armed force or auxiliary force.

The phrase 'individual' or 'group of individuals' have been brought to the Act of by an amendment in It has been done with a malafide intention for bringing the local civilians within the jurisdiction of the Act of Such amendment itself indicates well that the Act of as enacted on Pursuant to the 'tripartite agreement' dated Thus, the matter of prosecuting and trying them under the Act of ended with this agreement. The cumulative effect of intention of enacting the Act of , unexplained delay in bringing instant prosecution and bringing amendment of the Act of in incorporating the phrase 'individual' or 'group of individuals' inevitably shows that bringing prosecution against the accused under the Act of is malafide and with political motive.

The learned senior counsel for the accused further submitted that the accused could have been prosecuted as aider and abettor only under the Collaborators Order , if he actually had committed any offence of aiding and abetting the principals. But 40 years after without bringing the principal offender to justice the accused cannot be prosecuted and tried under the Act of , particularly when the principals i.

The learned senior counsel Mr. Abdur Razzak has further submitted, apart from the above legal issue, that the testimony of witnesses in relation to charge nos. Prosecution has failed to establish the link of accused with the commission of crimes alleged in these charges. The telling evidence does not indicate anything as to the fact that the accused by his acts assisted or provided encouragement or moral support to the principal perpetrators of crimes alleged.

The learned counsel has advanced pertinent contention relating to elements of the offence of crimes against humanity. He has submitted that to characterize an offence as crimes against humanity it must have the elements ; i Attack for causing listed offences in the Act of ii victim must be civilian iii the attack must be part of systematic or widespread and iv Mens rea or knowledge.

But prosecution has failed to establish that the presence of these elements in relation to the alleged killing of Pallab as listed in charge no. Evidence led by prosecution does not fit to description from which it can be inferred that the offence of killing Pallab was not an isolated crime but an offence of crimes against humanity.

The learned counsel advanced similar argument so far it relates to legal points, in respect of charge no. In relation to charge nos. Prosecution has failed to show that they had reason to see the alleged event and know the accused since prior to the events alleged. Mere seeing the accused standing in front of Physical training center, Mohammadpur having a rifle in hand in the month of November, as narrated by P.

Besides, her statement made and archived in the museum of Mirpur Jallad Khana speaks something else. Defence has submitted photographed copy of her earlier statement made to the said museum before the Tribunal on Apart from this, Momena's version has not been corroborated by any other witnesses and as such relying on uncorroborated testimony of a single witness is not safe.

The events alleged in four charges took place during the early part of the war of liberation and during that time Al-Badar was not formed and thus it cannot be said that the accused allegedly participated or acted to the perpetration of crimes alleged in the capacity of a member of Al-Badar.

As regards standard of proof it has been submitted by the learned senior defence counsel that three facts have to be considered for evaluating the standard of proof. These are i elements to constitute the offence of crimes against humanity ii mode of liability of the person accused of offence alleged and iii fact indispensable for convictions. Prosecution's burden is not in any way reduced if it lacks unassailable standard of proof which may only lead to a conclusion as to guilt of accused beyond reasonable doubt.

Abdur Razzak the learned defence counsel concluded his argument by making submission that the defence is not disputing the commission of crimes alleged but the prosecution has failed by adducing materials and evidence that the accused either had complicity or aided or abetted to the accomplishment of such crimes.

The telling evidence adduced does not suggest that any act on part of accused which assisted or provided encouragement or moral support and the same had substantial effect to the actual commission of crimes perpetrated by the principals. The learned senior counsel went on to submit that the case of Akayesu so far it relates to corroboration of single sex victim testimony does not fit with the instant case and the observation made in paragraph of this judgment does not help the prosecution at all.

The learned counsel reiterated that the mens rea element is absent in this case as there has been no facts and circumstances that could validly lead to an inference that the accused acted knowing the consequence of the attack and context thereof. Finally, the learned senior counsel, submitted that defence does not dispute the commission of crimes alleged but the accused who has been charged with was not in Dhaka during and he had been staying at her native village Amirabad, Faridpur where he was running business at 'Chowdda Rashi Bazar' and in support of this plea of alibi , defence has adduced and examined four witnesses including the accused himself.

Merely for the reason that at the relevant time the accused belonged to Islami Chatra Sangha ICS he has been prosecuted with political motive and he deserves acquittal. The way of adjudicating the charges The evidence produced by both parties in support of their respective case was mainly testimonial.

Some of prosecution witnesses allegedly directly experienced the dreadful events they have narrated in court and that such trauma could have an impact on their testimonies. However, their testimony seems to be invaluable to the Tribunal in its search for the truth on the alleged atrocious events that happened in war of liberation directing the Bangalee civilian population, after duly weighing value and credibility of such testimonies.

Despite the indisputable atrociousness of the crimes committed during the war of liberation in in collaboration with the local perpetrators, we require to examine the facts constituting offences alleged and complicity of the accused therewith in a most dispassionate manner, keeping in mind that the accused is presumed innocent.

United States US para page of Final defence argument pack] , as cited by the learned senior defence counsel which is as below: " Courts are not representative bodies. They are not designed to be a good reflex of a democratic society.

Their judgemnt is best informed, and therefore most dependable, within narrow limits. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures.

It should be borne in mind that the alleged incidents took place 42 years back, in and as such memory of live witness may have been faded. Therefore, in case like one in our hand involving adjudication of charges for the offence of crimes against humanity we are to depend upon i facts of common knowledge ii documentary evidence iii reporting of news paper, books etc having probative value iv relevant facts v circumstantial evidence vi careful evaluation of witnesses' version vii Political status of the accused at the relevant time and viii the jurisprudence evolved on these issues in the adhoc tribunals.

In the prosecution of crimes against humanity, principally accused's status, position, association, authority, conduct, activities, link with the state organization are pertinent issues even prior to the alleged events. In determining culpability of the accused, all these factors have to be addressed and resolved as well. It is to be noted, in particular when the Tribunal acts on hearsay evidence, it is not bound to apply the technical rules of evidence.

Rather the Tribunal is to determine the probative value of all relevant evidence admitted. Hearsay evidence, in a trial under the Act of , is not inadmissible per se , but that such evidence should be considered with caution and if it carries reasonable probative value. Therefore, we have to resolve whether these crimes were committed and if so, whether the accused is guilty of those charges brought against him. The prosecution, in the light of the charges framed, is burdened to prove- i commission of the crimes alleged ii mode of participation of the accused in committing any of crimes alleged ii how he acted in aiding and abetting or providing encouragement or moral support to the commission of any of crimes iii How he had complicity to commission of any of crimes iv the elements necessary to constitute the offence of crimes against humanity v liability of the accused.

Admittedly, the accused has been indicted for the crimes committed in violation of customary international law and thus this Tribunal shall not be precluded from borrowing guidance from the jurisprudence evolved to characterize the offences alleged as crimes against humanity. Backdrop and Context The backdrop and context of commission of untold barbaric atrocities in war of liberation is the conflict between the Bangalee nation and the Pakistani government that pushed the Bangalee nation for self determination and eventually for freedom and emancipation.

War of Liberation started following the ' operation search light ' in the night of 25 March and lasted till 16 December when the Pakistani occupation force surrendered. Ten millions one crore of total population took refuge in India under compelling situation and many of them were compelled to deport. What was the role of the accused during the period of nine months? What were his activities? What he did and for whom? Had he link, in any manner, with the Pakistani occupation force or pro-Pakistan political party Jamat E Islami JEI and the militia forces formed for implementing organizational policy or plan and if so, why?

We take the fact of common knowledge which not even reasonably disputed that, during that time parallel forces e. Thousands of incidents happened through out the country as part of organized and planned attack. Target was the pro-liberation Bangalee population, Hindu community, political group, freedom fighters and finally the 'intellectuals'.

We are to search answers of all these crucial questions which will be of assistance in determining the liability of the accused for the offence for which he has been charged. The charges against the accused arose from some particular events during the War of Liberation in Discussion The case, as it transpires, is founded on oral evidence and documentary evidence as well.

The evidence adduced by the prosecution is to be evaluated together with the circumstances revealed, relevant facts and facts of common knowledge. It would be expedient to have a look to the facts of common knowledge of which Tribunal has jurisdiction to take judicial notice [Section 19 3 of the Act of ]. However, before we address the above factual issues involved we prefer to resolve the legal issues agitated by the defence.

Inevitably determination of these issues will be of assistance in arriving at decision on facts in issues. Addressing legal issues agitated Before we enter into the segment of our discussion on adjudication of charges we consider it convenient to address and resolve the legal issues agitated during summing up of cases of both parties.

Summary of Argument advanced by the defence Counsel on legal aspects Abdur Razzak the senior defence counsel, in course of summing up of defence case has taken pain in raising some pertinent legal issues. In reply to these legal contentions, Mr. Mohammad Ali, the learned Prosecutor submitted that there is no limitation in bringing criminal prosecution, particularly when it relates to 'international crimes' committed in violation of customary international law.

Prosecutor went on to submit that the 'tripartite agreement' cannot bung up in bringing prosecution under the Act of against 'auxiliary force ' and 'individual' or 'group of individuals'. Besides, the 'tripartite agreement' which was a mere 'executive act' did not give immunity to listed war criminals belonging to Pakistani occupation army from being prosecuted.

The Collaborators Order was meant to prosecute and try the persons responsible for the penal offences and not for committing 'international crimes'; that the offences of crimes against humanity for which the accused has been charged with were part of organised and planned attack.

The offence of crimes against humanity is well defined in the Act of The phrase ' committed against civilian population ' as contained in section 3 2 a of the Act of itself patently signifies that acts constituting offences specified therein are perceived to have been committed as part of 'systematic attack'.

The context of war of liberation is enough to qualify the acts as the offences of crimes against humanity. Our Tribunal which is a domestic Tribunal constituted under our own legislation enacted in the sovereign parliament meant to prosecute, try and punish the perpetrators of 'international crimes' taking the context and pattern of atrocities into account may arrive at decision whether the acts constituting the offences can be qualified as crimes against humanity.

It has been argued on this legal issue by the senior learned counsel for the defence Mr. Abdur Razzak that there has been no limitation in bringing criminal prosecution but such inordinate delay of long 40 years must be explained. The learned defence counsel, in support of his submission relating to unexplained inordinate delay in bringing prosecution has cited some decisions and has contended that unexplained delay makes the prosecution reasonably tainted and doubtful and offers an impression of malafide intention to prosecute the accused.

In support of his contention the learned senior counsel for the defence has cited some decisions and drew attention to the meaning of 'malafide' adding further that in every adhoc tribunals and tribunals set up for prosecuting and trying crimes against humanity and genocide the persons accused of such crimes have been brought to jurisdiction of tribunal within shortest possible of time and mostly instantly after the event of atrocities committed.

No delay occurred in either tribunal in trying the offence of crimes against humanity. Thus prosecution is obliged to offer an explanation of 40 years delay for dispelling doubt as to genuineness of prosecution. Having regard to above submission, we are of view that 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 , nor the Geneva Conventions of contain any provisions on statutory limitations to war crimes and crimes against humanity. Article I of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity adopted and opened for signature, ratification and accession by General Assembly resolution XXIII of 26 November 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. Still the Nazi war criminals of the Second World War are being prosecuted. Trials of genocides committed during the Chilean revolution and the Pol Pot regime of Cambodia in thes 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. It is a fact of common knowledge that in , Maurice Papon , who has died aged 96, was the minister for the budget in the administration of Prime Minister Raymond Barre, when his role in the deportation of French Jews during the Second World War was uncovered.

Papon had been charged in on the basis of his activities from to Eventually brought to trial, he was convicted in of complicity in crimes against humanity and sentenced to a year prison sentence for ordering the arrest and deportation of 1, Jews, including children, from the Bordeaux region to the Nazi death camps in Germany. He was looking for documents concerning relations between local wine merchants and the Germans during the occupation.

By chance he came across the archives of the department of Jewish affairs, which had been attached to the prefecture of Bordeaux at the time of Vichy, the puppet government set up by the Nazis. In these forgotten papers he found evidence concerning the forced deportation of Jews from Bordeaux to the transit camp at Drancy, near Paris from where they were sent to the death camps , during the years to Maurice Papon always claimed that he was the victim of a political trial that had caused him great suffering and the death of his wife, who died during the trial.

Nevertheless, on April 2 , after the longest postwar trial, Maurice Papon was found guilty of the arrest and deportation of French Jews during the years Taking the above instance into account and in view of settled position and in the absence of any statutory limitation, as a procedural bar, only the delay itself does not preclude prosecutorial 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 favourable and stable political situation. Mere state inaction, for whatever reasons, does not render the delayed prosecution readily frustrated and barred by any law. Here, we cannot abstain from taking the historical context prompting such delay in prosecuting the 'individuals' responsible for atrocities in war of liberation.

The Statute was enacted in But after the dark episode of assassination of Bangabandhu Sheikh Mujibur Rahman and his family on 15 August the process was halted and even the Collaborators Order was repealed on The individuals and political organizations which played visibly a notorious and antagonistic role resisting the war of Liberation in were allowed of being rehabilitated and recognized in all spheres of state.

Unfortunately, the nation carrying enormous pains had to play the role of mere spectator. Because, the situation was not favourable for raising voice for prosecuting the perpetrators of serious crimes committed in violation of customary international law in Democracy too remained halted till and there was no favourable situation, strong political will and consensus till to prosecute the offenders under the Act of This history of common knowledge itself is explanatory for delayed prosecution and thus the accused cannot be said to have been prosecuted and tried under the Act of for political purpose.

Prolonged impunity and the related denial of the truth will allow old wounds to fester and may increase post-traumatic stress suffered by the victims of human rights crimes. Council, U. In this respect, Cohen has observed that "after generations of denials, lies, cover-ups and evasions, there is a powerful, almost obsessive, desire to know exactly what happened.

In Bangladesh, the efforts initiated under a lawful legislation to prosecute, try and punish the perpetrators of crimes committed in violation of customary international law is an indicia of valid and courageous venture to come out from the culture of impunity. Customary international law has finally progressed to a stage where States may not point to the passage of time to escape their duty to prosecute and punish perpetrators of genocide, crimes against humanity, and war crimes in their own courts.

Crimes against humanity and genocide, the gravest crime never get old and that the perpetrators who are treated as the enemies of mankind will face justice. We should not forget it that the millions of victims who deserve that their tormenters are held accountable; the passage of time does not diminish the guilt.

Considerations of material justice for the victims should prevail when prosecuting crimes of the extreme magnitude is on the process. Justice delayed is no longer justice denied, particularly when the perpetrators of core international crimes are brought to the process of justice. Again, what consequence would follow if no explanation regarding delay is made while prosecuting the accused for perpetrating crimes against humanity has not been elaborated by the learned defence counsel.

However, there can be no recognised theory to insist that such a 'system crime' can only be pursued within a given number of years. Therefore, delayed prosecution does not rest as a clog in prosecuting and trying the accused and creates no mystification about the atrocities committed in By drawing attention to the Parliamentary debate dated 13 July on the issue of passing the Bill for promulgating the International Crimes Tribunals Act , the learned senior counsel for the defence has submitted that pursuant to the above debate eventually the Act of was enacted on 20 July after bringing first amendment of the Constitution on 15 July It has been further submitted that the Act of and first amendment of the constitution will go to show that intention of the framers of the legislation was to prosecute and try the listed war criminals of Pakistan armed force and not the civilians as the phrase 'including any person' was replaced by the phrase 'any person' belonging to armed force or auxiliary force.

The first amendment of the constitution was brought so that no 'civilian person' could be prosecuted and tried under the Act of The learned senior counsel for the defence went on to submit further that a press release dated 17 April [Page 1 of the defence Argument pack] prior to first amendment of the constitution and thereby abatement of the Act of also goes to show that government's intention was to prosecute and try only the listed war criminals of Pakistani occupation armed force and their 'auxiliary force' which acted under its control.

The learned prosecutor Mr. Mohammad Ali, in reply, has argued that the Act of is meant to prosecute, try and punish any 'individual' or 'group of individuals' , or any member of armed, defence or auxiliary force for the offences specified in section 3 2 of the Act of If it is not proved that the accused belonged to 'auxiliary force' even then he may be brought to jurisdiction of the Tribunal if he is found to have perpetrated offences enumerated in the Act of in the capacity of an 'individual'.

It is true that initially the Act of was enacted to prosecute try and punish the listed war criminals of Pakistani occupation armed force and their 'auxiliary force'. Admittedly, the accused has been indicted for the crimes committed in violation of customary international law and thus this Tribunal shall not be precluded from borrowing guidance from the jurisprudence evolved to characterize the offences alleged as crimes against humanity.

Addressing legal issues agitated Before we enter into the segment of our discussion on adjudication of charges we consider it convenient to address and resolve the legal issues agitated during summing up of cases of both parties. It has been argued on this legal issue by the senior learned counsel for the defence Mr. Abdur Razzak that there has been no limitation in bringing criminal prosecution but such inordinate delay of long 40 years must be explained.

Having regard to above submission, we are of view that 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 , nor the Geneva Conventions of contain any provisions on statutory limitations to war crimes and crimes against humanity.

Article I of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity adopted and opened for signature, ratification and accession by General Assembly resolution XXIII of 26 November 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.

Still the Nazi war criminals of the Second World War are being prosecuted. Trials of genocides committed during the Chilean revolution and the Pol Pot regime of Cambodia in thes are now ongoing. It is a fact of common knowledge that in , Maurice Papon, who has died aged 96, was the minister for the budget in the administration of Prime Minister Raymond Barre, when his role in the deportation of French Jews during the Second World War was uncovered.

Papon had been charged in on the basis of his activities from to Eventually brought to trial, he was convicted in of complicity in crimes against humanity and sentenced to a year prison sentence for ordering the arrest and deportation of 1, Jews, including children, from the Bordeaux region to the Nazi death camps in Germany. In these forgotten papers he found evidence concerning the forced deportation of Jews from Bordeaux to the transit camp at Drancy, near Paris from where they were sent to the death camps , during the years to 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 favourable and stable political situation. The Statute was enacted in But the history says, after the dark episode of assassination of Bangabandhu Sheikh Mujibur Rahman and his family on 15 August the process was halted and even the Collaborators Order was repealed on The individuals and political organizations which played visibly a notorious and antagonistic role resisting the war of Liberation in were allowed of being rehabilitated and recognized in all spheres of state.

Democracy too remained halted till and there was no favourable situation, strong political will and consensus till to prosecute the offenders under the Act of This undisputed history of common knowledge itself is explanatory for delayed prosecution and thus the accused cannot be said to have been prosecuted and tried under the Act of for political purpose. Justice delayed is no longer justice denied, particularly when the perpetrators of core international crimes are brought to the process of justice.

However, there can be no recognised theory to insist that such a 'system crime' can only be pursued within a given number of years. Therefore, delayed prosecution does not rest as a clog in prosecuting and trying the accused and creates no mystification about the atrocities committed in It has been further submitted that the Act of and first amendment of the constitution will go to show that intention of the framers of the legislation was to prosecute and try the listed war criminals of Pakistan armed force and not the civilians.

Till the Act of was dormant and no Tribunal was constituted under it. Pursuant to the tripartite agreement of , listed war criminals of Pakistani armed force were allowed to walk free which was derogatory to jus cogens norm. The history says, for the reason of state obligation to bring the perpetrators of responsible for the crimes committed in violation of customary international law to justice and in the wake of nation's demand the Act of has been amended for extending jurisdiction of the Tribunal for bringing the perpetrator to book if he is found involved with the commission of the criminal acts constituting offences as enumerated in the Act of even in the capacity of an 'individual' or member of 'group of individuals'.

We are to perceive the intent of enacting the main Statute together with fortitude of section 3 1 of the Act. At the same time we cannot deviate from extending attention to the protection provided by the Article 47 3 of the Constitution to the Act of which was enacted to prosecute, try and punish the perpetrators of atrocities committed in War of Liberation. Thus, we hold that the contention raised by the defence is of no consequence to the accused in consideration of his legal status and accordingly the defence objection is not sustainable in law, particularly in the light of Article 47 3 and Article 47A 2 of the Constitution.

It has been argued by the learned senior defence counsel that pursuant to the 'tripartite agreement' dated Thus the matter of prosecuting and trying them under the Act of ended with this agreement. As regard local perpetrators who allegedly aided and abetted the Pakistani occupation armed force in committing atrocities including murder, rape, arson the government enacted the Collaborators Order Thus the Collaborator Order was the only legal instrument to bring the local perpetrators to book.

Having regard to above submission and careful look to the Act of and the Collaborators Order we are constrained to hold that it is not good enough to say that no 'individual' or member of 'auxiliary force' as stated in section 3 1 of the Act of can be brought to justice under the Act for the offence s enumerated therein for the reason that Pakistani war criminals belonging to Pak armed force were allowed to evade justice on the strength of 'tripartite agreement' of Such agreement was an 'executive act' and it cannot create any clog to prosecute member of 'auxiliary force' or an 'individual' or member of 'group of individuals' as the agreement showing forgiveness or immunity to the persons committing offences in breach of customary international law was derogatory to the existing law i.

It is settled that the jus cogens principle refers to peremptory principles or norms from which no derogatory is permitted, and which may therefore operate a treaty or an agreement to the extent of inconsistency with any such principles or norms. We are thus inclined to pen our convincing view that the obligation imposed on the state by the UDHR Universal Declaration of Human Rights and the Act of is indispensable and inescapable and as such the 'tripartite agreement' which is mere an 'executive act' cannot liberate the state from the responsibility to bring the perpetrators of atrocities and system crimes into the process of justice.

Amnesty shown to listed war criminals are opposed to peremptory norms of international law. It is to be noted that any agreement and treaty amongst states in derogation of this principle stands void as per the provisions of international treaty law convention [Article 53 of the Vienna Convention on the Law of the Treaties, ].

Despite the immunity given to listed war criminals belonging to Pakistani armed force on the strength of 'tripartite agreement' the provisions as contained in section 3 1 of the Act of has kept the entrance still unbolt to prosecute, try and punish them for shocking and barbaric atrocities committed in in the territory of Bangladesh. It is to be noted that the perpetrators of crimes against humanity and genocide are the enemies of mankind. Therefore, we are of the view that the 'tripartite agreement' is not at all a barrier to prosecute local civilian perpetrators under the Act of The learned defence counsel has attempted to submit that the accused could have been prosecuted, tried and punished under the Collaborators Order , if actually he had committed any act of aiding or abetting to the commission of crimes alleged.

The Collaborators Order was a different legislation aiming to prosecute the persons responsible for the offences enumerated in the schedule thereof. It will appear that the offences punishable under the Penal Code were scheduled in the Collaborators Order While the Act was enacted to prosecute and try the 'crimes against humanity', 'genocide' and other system crimes committed in violation of customary international law.

There is no scope to characterize the offences underlying in the Collaborators Order to be the same offences as specified in the Act of Therefore, we are disinclined to accept the argument that merely for the reason that since the accused was not brought to justice under the Collaborators Order now he is immune from being prosecuted under the Act of It has been argued that the accused has been charged with for the offence of 'murder' the event of which will appear to be isolated and as such for such isolated crimes he could have been prosecuted and tried under the Collaborators Order which was meant to try the offences as scheduled therein i.

On this score as well the charges brought against the accused cannot be sustainable in law. Charles Taylor was indicted by the Prosecutor in when he was a sitting president and Head of State of Liberia. He was not prosecuted and tried together with any other offender or principal perpetrator.

Therefore, we find that in law, either 'aiding' or 'abetting' alone is ample to render the perpetrator criminally liable. The Act of has enumerated 'abetting' and 'aiding' as distinct offence and punishable there under. From the jurisprudence evolved in the ICTR and SCSL it is now settled that even only the abettor and aider to perpetration of crimes underlying in the statutes can be prosecuted.

The above international references also consistently supplement our own view that 'abetting' or 'aiding' being distinct offence in the Act of the persons responsible for any of these unlawful acts that substantially facilitated the commission of offence enumerated in section 3 2 a c can lawfully be brought to justice.

The learned defence counsel has argued that the offences specified in section 3 2 are not well defined and the same lack of elements. Section 3 2 of the ICTA does not explicitly contain the 'widespread or systematic' element for constituting the crimes against humanity. In this regard this Tribunal may borrow the elements and definition of crimes as contained in the Rome Statute. It has been further argued that an 'attack' may be termed as 'systematic' or 'widespread' if it was in furtherance of policy and plan.

Thus the offence if actually happened, in absence of context and policy and plan the same cannot be characterized as crimes against humanity. Tribunal notes that 'policy' and 'plan' are not the elements to constitute the offence of crimes against humanity. It is true that the common denominator of a systematic attack is that it is carried out pursuant to a preconceived policy or plan. But these may be considered as factors only and not as elements. This view finds support from the observation made in paragraph 98 of the judgment in the case of prosecutor v.

Kunarac [Case No. Thus, the existence of a policy or plan may be evidently relevant, but it is not a legal element of the crime. It is further submitted that the ICTY Statute does not contain the 'widespread' or 'systematic' element but it has developed jurisprudence by its judgment in the case of Tadic Appeal Chamber: ICTY that for qualifying the offences as crimes against humanity it must be committed as part of 'widespread' or 'systematic' attack. But the prosecution has utterly failed to show by evidence that the offences for which the accused has been charged with were part of the 'widespread' or 'systematic' attack.

We are of patent view that section 3 2 a of the Act is self contained and fairly compatible with the international jurisprudence. If we make a closer look to the contemporary standards of definition of 'Crimes against Humanity' in various Statutes, first this observation can be made that there is no 'consistency' among definitions.

The definition of 'Crimes against humanity' as contemplated in Article 5 of the ICTY Statute neither requires the presence of 'Widespread and Systematic Attack' nor the presence of 'knowledge' thereto as conditions for establishing the liability for 'Crimes against Humanity'. It is the jurisprudence developed in ICTY that identified the 'widespread' or 'systematic' requirement.

But, the Rome Statute says, the definition etc. Thus, our Tribunal ICT which is a domestic judicial body constituted under a legislation enacted by our Parliament is not obliged by the provisions contained in the Rome Statute. The Rome Statute is not binding upon this Tribunal for resolving the issue of elements requirement to constitute the offence of crime against humanity. If the specific offences of 'Crimes against Humanity' which were committed during are tried under Act, it is obvious that they were committed in the 'context' of the war.

This context itself is sufficient to prove the existence of a 'systematic attack' on Bangladeshi self-determined population in It is the 'context' that transforms an individual's act into a crime against humanity and the accused must be aware of this context in order to be culpable of crime alleged. Conducts constituting 'Crimes' 'committed against civilian population' thus refers to organized and systemic nature of the attack causing acts of violence to the number of victims belonging to civilian population.

Therefore, the claim as to the non-existence of a consistent international standard for the definition of 'crimes against humanity' as enumerated in the Act of is manifestly baseless. The learned senior counsel reiterated that the mens rea element is absent in this case as there has been no facts and circumstances that could validly lead to inference that the accused acted knowing the consequence of the attack and context thereof.

It appears that only one paragraph in the Tadic judgment refers to this question, and it summarily considers existing case law on whether or not the perpetrator of crimes against humanity must have knowledge of the context within which the acts are committed. Tadic , Case No. ITT, opinion and judgment, 7 May , para ]. The mens rea of the offences was not considered, most likely because Dusko Tadic offered an alibi defence, which does not raise questions about intent, and simply denies that the accused was present or involved when the crime was committed.

It is not alleged that accused himself directly participated in the actual commission of the crimes alleged. In alternative, he has been charged for aiding or abetting or having complicity to the crimes committed. That is to say, the accused had acted as a 'secondary perpetrator' or 'accomplice'.

In such case the acts of assistance and providing encouragement and moral support to the principals is to be presumed from relevant facts and acts of accused either before or at the time of commission of crime or even after the commission thereof. The mens rea of the accused for abetting or aiding need not be explicit, it may be inferred from the circumstances. Indeed, as mens rea is a state of mind, its proof is typically a matter of inference. In the case in our hand, we are to perceive that the accused acted having 'awareness' coupled with his conscious decision to accompany the principals to the crime site.

However, in light of above observations and settled jurisprudence the matter of mens rea or knowledge or intent may be well determined while adjudicating the charges independently. Relevant and Decisive Factual Aspects i Facts relevant to establish the role and association of the accused with the gang of perpetrators consisting of local Biharis namely Aktar goonda, Hakka goonda, Abbas chairman, Hasib Hasmi, Nehal The unshaken relevant fact of his close and culpable association with the gang of local Biharis including Aktar goonda Nehal, Hasib Hashmi, Abbas Chairman adds further assurance to the role of the accused at the relevant time.

In cross-examination, in reply to question put to him by the defence P. Besides, from the above unshaken and re-affirmed version it is quite evident too that accused Abdul Qauder Molla was a potential member of armed Al-Badar force and had been in Dhaka during the period of war of liberation in Besides, accused Abdul Quader Molla while deposing as D. For the reason of conduct , role and culpable association of the accused with the gang of local Bihari hooligans who were quite antagonistic to the local Bengali people particularly who were in favour of self-determination movement of Bengali nation it is validly inferred without any doubt that accused Abdul Qauder Molla had accompanied , encouraged, aided and provided moral support to them to the actual commission of atrocious activities perpetrated in the area of Mirpur that happened during the early part of the war of liberation, in furtherance of 'operation search light' on 25 March Accordingly, the hearsay evidence of prosecution witnesses have to be viewed, valued and weighed together with the above pertinent relevant facts.

Adjudication of Charges With regard to the factual findings, the Tribunal is required only to make findings of those facts which are indispensable to the determination of guilt on a particular charge. The Tribunal, according to settled jurisprudence, is in no way obliged to refer to every phrase pronounced by a witness during his testimony but it may, where it deems appropriate, stress the main parts of the testimony relied upon in support of a finding.

Keeping it in mind we are going to adjudicate the charges through providing 'reasoned opinion' on rigorous evaluation of the facts in question by referring the relevant piece of evidence. Adjudication Charge No. On cumulative evaluation of testimony and relevant facts and circumstances we have found that accused Abdul Qauder Molla and his Bihari accomplices masterminded and executed the killing of Pallab, a civilian, as a part of attack.

It is thus validly inferred that the accused having 'awareness' as to the consequences of acts and conduct of those Bihari perpetrators continued his association with them. It was not necessary that the accused must remain present at the crime site when the murder of Pallab was actually committed. The accused Abdul Quader Molla is thus found to have had 'complicity' to the actual commission of killing Pallab in the manner by bringing him forcibly from Nababpur.

The reason of targeting Pallab was that he was in favour of pro-liberation activities and as such it may be unambiguously presumed that killing him was in furtherance of systematic attack directed against civilian population. As a result, the accused incurs criminal liability for having his 'complicity' to the commission of the murder of Pallab constituting the offence of crime against humanity as specified in section 3 2 a h of the Act of which is punishable under section 20 2 of the Act.

Adjudication of Charge No. The act of leading the gang of actual perpetrators is indeed an act forming part of the attack that substantially contributed and provided 'moral support' and 'encouragement' to the actual commission of the crime. Merely for the reason that the accused had no physical participation to the perpetration he cannot be relieved from liability as his act of leading the gang of course provided substantial moral support and encouragement to the principals.

Complicity encompasses 'culpable association' with the principals, and providing 'moral support', 'encouragement' to them. An accused can be considered to have participated in the commission of a crime if he is found to be 'concerned with the killing.

By the act of leading the gang of perpetrators the accused is thus found to have provided moral support and encouragement to the principals to the actual commission of the crime. It is to be noted that a single or relatively limited number of acts on part of the accused would qualify as a crime against humanity, unless those acts may be said to be isolated.

Leading the gang of perpetrators to the crime site was of course not an isolated act. It may be lawfully inferred that the accused knew or had reason to know that the principals were acting with intent to commit the offence of murder. The circumstances and facts insist to believe that the accused, as he led the gang of perpetrators, knew the intent of the principals. Thus, it has been proved that the accused Abdul Quader Molla had, with knowledge and mens rea, conscious complicity to the commission of the offence murder as crimes against humanity as listed in charge no.

Ccumulative effect of evidence and relevant facts and circumstances may have a decisive role in determining the culpability of the accused. Circumstantial evidence is not considered to be of less probative value than direct evidence. The act of culpable association of the accused with the principals and the evidence as discussed above inevitably proves that the accused Abdul Quader Molla was involved with the commission of the alleged brutal killing.

Considering the context and pattern of attack we are satisfied that the aforementioned killing formed part of a systematic or organised attack against the civilian population. The victim of the alleged killing was a member of pro-liberation civilian population. The Tribunal is thus satisfied that the aforementioned killing constitutes the offence of murder as a crime against humanity committed in violation of customary international law. We have already observed that actual physical participation when the crime is committed is not necessary and an accused can be considered to have participated 'in the commission of a crime' if he is found to be 'concerned' with the killing.

Since the testimony of P. Like all elements of a crime, the identification of the Accused must be proved by the Prosecution beyond reasonable doubt. In assessing identification evidence, it is to be taken into account a number of relevant factors, including: the circumstances in which each witness claimed to have observed the accused; the length of the observation; the familiarity of the witness with the Accused prior to the identification; and the description given by the witness of his or her identification of the accused.

But as we see, the evidence does not inspire us to believe that the P. None of these two witnesses claim so. In view of above discussion and reasons the Tribunal notes unanimously that it has not been proved beyond reasonable doubt that the accused Abdul Quader Molla accompanied the Pakistani perpetrators to the crime site having rifle in hand and that the person whom P.

It is not plausible too that P. Testimony of P. Mere fact that P. However, we are persuaded to note that the commission of the event of mass killing by launching attack directing the civilians as crimes against humanity on the date time and in the manner causing deaths of numerous civilians has been proved. Besides, commission of crimes alleged is not disputed. But for the reasons as stated above we are not convinced to arrive at decision that the guilt of accused has been proved. Prosecution has failed to prove participation or complicity or act on part of the accused to the commission of the offence of crimes against humanity by adducing lawful and credible evidence.

As a result accused Abdul Quader Molla is not found to have incurred criminal liability for the commission of offence of mass killing as crimes against humanity as listed in charge no. On final evaluation of evidence and relevant facts and circumstances, we are convinced to arrive at decision that the prosecution has been able to prove it beyond reasonable doubt by lawful and credible evidence of live witnesses that the accused knowing the intent of the main perpetrators accompanied the gang and remained physically present at the crime site having rifle in hand.

Prosecution has been able to show that the accused Abdul Quader Molla, his Bihari accomplices and the Pakistani army, acting pursuant to a common design possessed the same criminal intention in accomplishment of the massacre.

It is validly inferred that the accused Abdul Quader Molla with full 'awareness' of the consequence of the attack accompanied the principals with intent to assist and encourage the execution of the 'operation'. Such acts forming attack are sufficient to characterize the outcome of the attack causing mass killing of unarmed civilians as crimes against humanity.

Section 4 1 of the Act of contains provision as to liability of crimes. It has been proved that the horrific event of mass killing of unarmed civilians of Alubdi village was perpetrated by a gang of local Bihari hooligans and their accomplice accused Abdul Quader Molla and Pakistani army.

Accused Abdul Quader Molla physically accompanied the gang to the crime site having rifle in hand and therefore he is liable for the atrocious event of massacre in the same manner as if it was done by him alone. Therefore, accused Abdul Quader Molla incurs criminal liability under section 4 1 of the Act of for the offence of mass killing as crimes against humanity as specified in section 3 2 a of the Act of which are punishable under section 20 2 read with section 3 1 of the said Act.

The Tribunal notes that accused Abdul Quader Molla had physically participated in the attack targeting the father and family members of the P. Thus, it is lawfully presumed that the accused had actus reus in providing moral support and aid to the commission of offence. The actus reus of abetting requires assistance, encouragement or moral support which has a substantial effect on the perpetration of the crimes.

Now the question has been raised by the defence that the principal offenders have not been identified and brought to the process of justice and thus the accused cannot be held responsible as aider and abettor. No person of normal human prudence will come to a conclusion that at the time of incident of part of systematic attack, the accused who accompanied the principal perpetrators had a different or innocent intent. Rather, the evidence of P.

As one of the founding members of the People's Action PartyLee is recognised as the nation's founding father, credited with rapidly transitioning the country from a " developing third world country into a developed first world country within a single generation" under his leadership.

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Aiding and abetting law uk hakka To reduce this problem, Lee decided to experiment with water recycling in Epigram Books. As a result, movement started in the territory of this part of Pakistan and Bangabandhu Sheikh Mujibur Rahman in his historic speech of 7th March,called on the Bangalee nation to struggle for independence if people's verdict is not respected. Inevitably determination of these issues will be of assistance in arriving at decision on facts in issues. Charge no. Thus, his testimony made in Tribunal is not credible and it suffers from contradiction.
Aiding and abetting law uk hakka In addition, Lee was accused of promoting a culture of elitism among Singapore's ruling class. Amnesty shown to listed war criminals are opposed to peremptory norms of international law. The motion was agreed to with 27 "Ayes", 8 "Noes" and 16 abstentions. Backdrop and Context Charlie Rose. This was the speech that changed history. Archived from the original on 4 June

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Preserving Evidence. Hearsay in Criminal Cases. Stages of a Criminal Case. Stages of a Criminal Trial. Search Warrant Requirement. Search and Seizure Rules. Consent to a Search. Consent to Home Searches. Car Searches. Searches Incident to Arrest. The Good-Faith Exception. The Patriot Act. The Knock-Notice Rule. Search Warrants. Types of Criminal Offenses -. Drug Crimes. Drug Manufacturing. Drug Possession. Drug Trafficking. Medical Marijuana. Drug Laws. Felony Murder. First-Degree Murder.

Involuntary Manslaughter. Second-Degree Murder. Vehicular Homicide. Voluntary Manslaughter. Aiding and Abetting. Federal Crimes. Juvenile Crimes. Juvenile Delinquency. Status Offenses. Sentencing in Juvenile Court. Juveniles in Adult Court. Constitutional Rights for Juvenile Defendants.

Confidentiality of Juvenile Court Records. Evading the Police. Criminal Trespass. Disorderly Conduct. Animal Cruelty and Neglect. Child Molestation Law. Child Pornography Law. Public Indecency. Sexual Assault. Sexual Misconduct. Statutory Rape. Auto Theft. Traffic Offenses. Driving on a Suspended or Revoked License. Driving Without a License. Hit and Run.

Reckless Driving. Traffic Tickets. Vehicular Assault. Violent Crimes. Assault and Battery. Child Abuse. Domestic Violence. White Collar Crimes. Bank Fraud. Credit Card Fraud. Check Fraud. Insurance Fraud. Securities Fraud. Tax Fraud.

Welfare Fraud. Wire Fraud. Insider Trading. Money Counterfeiting. Money Laundering. Tax Evasion. Other Alcohol-Related Crimes. Probation Violations. Sealing Juvenile Records. Removal From Sex Offender Databases. Lesser Included Offenses. Mental State Requirement. Derivative Responsibility for Crimes. Paying for a Private Criminal Lawyer. Public Defenders. The statute was once again updated in , at which time 18 U.

Section became 18 U. Section 2 a. This updated law makes it clear that someone who aids and abets the commission of a crime will be punished as though he or she did commit the crime. To convict someone of aiding and abetting a crime, the prosecutor must prove certain elements.

In a federal case, those elements include:. To gain a conviction, a jury must be convinced that the elements of aiding and abetting are present, beyond a reasonable doubt. In truth, once the prosecution establishes that the defendant knew about the crime, or the unlawful purpose of some element, it has made sufficient connection for the jury to convict. Both aiding and abetting, and acting as an accessory to a crime, are illegal acts. Specific laws regarding these actions vary by jurisdiction , and the definitions overlap in some ways, leading to their interchangeable use.

There are differences between aiding and abetting, and accessory, however. To be convicted of this type of crime, however, the prosecution must prove that the accomplice knew that a crime was being, or had been, committed by the principal. The primary difference between aiding and abetting or being an accessory to a crime and a conspiracy is whether or not the crime was actually committed.

While the former are charges imposed after the crime has been committed — naming a third party who helped in some way to facilitate or cover up the crime — someone can be charged with conspiracy , even if the crime never happened. This is not to say that anyone who daydreams up a crime can be charged with conspiracy. If, however, two or more people collaborate on how to commit a specific crime, coming up with plans to carry it out, they have conspired to commit that crime.

Should something happen to prevent them from engaging that plan, they still have committed the crime of conspiracy. Armand, an executive assistant at a finance firm, knows that his boss keeps certain passwords and login information in a notebook in his desk drawer. He befriends Letti, who he knows has no problem doing things that are morally questionable. Another employee overhears Armand and Letti talking over lunch on the patio, and mentions it to management, who calls the police.

A quiet investigation ensued, with police interviewing witnesses, and viewing surveillance video of the pair talking frequently. Both Armand and Letti are then taken into custody, and charged with conspiracy to commit the crime — even though the actual crime was never completed. One of the men, Daniel Wilkins, was mocking the other, Donald Rose, saying he had not proven himself as a gang member. As Rose headed into an area controlled by two Blood gangs enemies of the East Coast Crips , a California Highway Patrol officer pulled over a car that was both speeding and driving recklessly.

The officer took the driver of the car to jail, leaving the passenger William Dabbs at the scene. Apparently unable to drive the car, Dabbs walked to a pay phone to call his cousin for a ride. During the brief conversation, the cousin heard the phone suddenly drop, then he heard a fight, which ended with two gun shots. Dabbs died soon after from his injuries. A few months later, both Wilkins and Rose were arrested for the crime.

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It raises tempers all over the world, and even in America. So why should we criminalise it? But there is such a strong inhibition in all societies — Christianity, Islam, even the Hindu, Chinese societies. So what do we do? I think we pragmatically adjust. You can read the books all you want, all the articles. So if two men or two women are that way, just leave them alone.

He says, 'I still love her, full stop. Do you throw the daughter out? Saying he took a "purely practical view" on the issue, Lee said, "Look, homosexuality will eventually be accepted. In a wide-ranging interview conducted on Aug. We say, O.

China has already allowed and recognized gays, so have Hong Kong and Taiwan," Lee responded. But we have a part Muslim population, another part conservative older Chinese and Indians. So, let's go slowly. It's a pragmatic approach to maintain social cohesion. In , Chua depicted Lee against a backdrop of Singapore's transformation.

The specially commissioned oil painting was presented to Lee himself. In , artist Lai Kui Fang presented historical oil paintings of Lee's swearing-in ceremony as prime minister, which are part of the National Museum of Singapore 's collection.

The book was updated and republished in Lee , a portrait of Lee made from 8, plastic shampoo bottle caps placed on an angled pedestal. The resulting exhibition, Beyond LKY , included artist Jimmy Ong 's triptych of Lee as a father figure looming over a tiny kneeling figure with the words, "Papa can you hear me", scrawled across the watercolours; an installation of a broken piano with a tape recorder playing a crackling version of Singapore's National Anthem by multi-disciplinary artist Zai Kuning; white ceramic chains hanging on a wall by ceramic artist Jason Lim; and an installation of hammers smashed together by artist Tang Da Wu.

The exhibition's title references Lee's former position as Minister Mentor and also the idea of "modern mythology". In , the iris image of Lee's eye was captured and artistically rendered to resemble a sand art gallery piece. His eye image with his autograph was auctioned off to raise funds for the Singapore Eye Research Institute. In , poet Cyril Wong published The Dictator's Eyebrow , a thinly veiled and surreal collection revolving around a Lee-like figure and his eyebrow's thirst for recognition and power.

In February , artist Boo Sze Yang presented The Father at iPreciation Gallery, a solo exhibition featuring eight oil-on-canvas portraits of Lee in unconventional settings, like an embellished throne or a scene that depicts the Last Supper. The series was later translated into Mandarin. In July , it was reported that photographers Samuel He and Sam Chin were on the search for people with the same name as Lee for an upcoming book project.

As of March , three people had been found, including Lee Kuang Yeo, a former fish farmer, who shares the same Chinese name as Lee. In October , cartoonist Morgan Chua released LKY: Political Cartoons , an anthology of cartoons about Lee published by Epigram Books , featuring a Singapore Herald cartoon of Lee on a tank threatening to crush a baby representing press freedoms that reportedly caused the newspaper's shutdown.

The painting, which took Tan five years to complete, was partially damaged by a fire in It depicts Lee and Kwa in their youth, is based on a black-and-white photograph of the couple in Cambridge University, and incorporates in its background Tan's poem in memory of Kwa.

A Couple was purchased by art collector Wu Hsioh Kwang. In , American painter Lee Waisler unveiled his portrait of Lee. At Art Stage Singapore , Singapore's Art Plural Gallery presented a solo exhibition by Chinese artist Nan Qi , comprising a selection of intricate ink paintings of politicians, including a series of portraits of Lee.

Ong created the A2-sized portrait in tribute to Lee, who was critically ill. The portrait, along with videos detailing the drawing process, went viral on social media. Yee also posted on his blog a stick-figure cartoon depicting Lee having sex with Margaret Thatcher , a personal and political ally of Lee's. Presented by art collector Vincent Chua, The Singapore Story featured 80 portraits of Lee and a life-size statue of Lee shaking hands with Deng Xiaoping when the Chinese statesman visited Singapore in Previously reported as a musical "about" Lee, Singapura instead only featured an obliquely named character, "Man in White", drifting across the stage.

Both the sculpture and exhibition are entitled Weathering Storms As One. In October , the W! In , Lee published My Lifelong Challenge Singapore's Bilingual Journey which chronicles his struggle adopting Singapore bilingual policy in a multiracial society.

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Now, having regard to section 10 1 j , section 20 1 and section 20 2 of the International Crimes Tribunals Act, [Act No. Commencement of proceedings 1. On 18 December , the Prosecution filed the 'formal charge' in the form of petition as required under section 9 1 of the Act of against accused Abdul Quader Molla. After providing due opportunity of preparation to accused, 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 The Tribunal after hearing both sides and on perusal of the formal charge, documents and statement of witnesses framed six charges relating to the commission of 'crimes against humanity' as specified in section 3 2 a of the Act of or in the alternative for 'complicity in committing such crimes' as specified in section 3 2 a g h of the said Act.

The charges so framed were read out and explained to the accused Abdul Qauder Molla in open court when he pleaded not guilty and claimed to be tried and thus the trial started. Introductory Words 3. International Crimes Tribunals Act, the Act XIX of [ hereinafter referred to as 'the Act of ' ] is an ex-post facto domestic legislation enacted in and after significant updating the ICTA through amendment in , the present government has constituted the Tribunal 1st Tribunal on 25 March The 2nd Tribunal has been set up on 22 March The degree of fairness as has been contemplated in the Act and the Rules of Procedure ROP formulated by the Tribunals under the powers conferred in section 22 of the principal Act are to be assessed with reference to the national wishes such as, the long denial of justice to the victims of the atrocities committed during independence war and the nation as a whole.

The Act of Bangladesh has the merit and mechanism of ensuring the standard of safeguards recognised universally to be provided to the person accused of crimes against humanity. Jurisdiction of the Tribunal 5. The Act of is meant to prosecute, try and punish not only the armed forces but also the perpetrators who belonged to 'auxiliary forces', or who committed the offence as an 'individual' or a 'group of individuals' and nowhere the Act says that without prosecuting the 'armed forces' Pakistani the person or persons having any other capacity specified in section 3 1 of the Act of cannot be prosecuted.

Thus, the Tribunal set up under the Act of are absolutely domestic Tribunal but meant to try internationally recognised crimes committed in violation of customary international law during the war of liberation in in the territory of Bangladesh. Brief Historical Background 6. Atrocious and dreadful crimes were committed during the nine-month-long war of liberation in , 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 take refuge in 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 an unfathomable abrasion on the country's political awareness and the whole nation. The undisputed history goes on to portray that in the general election of , the Awami League under the leadership of Bangabandhu Sheikh Mujibur Rahman became the majority party of Pakistan.

But defying the democratic norms Pakistan Government did not care to respect this overwhelming majority. As a result, movement started in the territory of this part of Pakistan and Bangabandhu Sheikh Mujibur Rahman in his historic speech of 7th March, , called on the Bangalee nation to struggle for independence if people's verdict is not respected. Jamat E Islami JEI and some other pro-Pakistan political organizations substantially contributed in creating these para-militias forces auxiliary force for combating the unarmed Bangalee civilians, in the name of protecting Pakistan.

Incontrovertibly the way to self-determination for the Bangalee nation was strenuous, swabbed with immense blood, strives and sacrifices. In the present-day world history, conceivably no nation paid as extremely as the Bangalee nation did for its self-determination. The West's army had the support of many of East Pakistan's Islamist parties. They included Jamaat-e-Islami, still Bangladesh's largest Islamist party, which has a student wing that manned a pro-army paramilitary body, called Al Badr.

Despite the above historic truth as to antagonistic and atrocious role of JEI and other pro-Pakistan political organizations section 3 1 of the Act of remains silent as regards responsibility of any 'organisation' for the atrocities committed in the territory of Bangladesh in war of liberation. Brief account of the accused In , according to the prosecution, he organized the formation of Al-Badar Bahini with the students belonging to Islami Chatra Sangha ICS and allegedly being in close alliance with the Pakistani occupation army and Jamat E Islami actively aided, abetted, facilitated and substantially assisted, contributed and provided moral support and encouragement in committing appalling atrocities in in the territory of Bangladesh.

Procedural History At pre-trial stage, the Chief Prosecutor submitted an application before the ICT-1 under Rule 9 1 of the Rules of Procedure seeking arrest of the accused Abdul Quader Molla for the purpose of effective and proper investigation. At the time of hearing it was learnt that the accused was already in custody in connection with some other case. Thereafter, pursuant to the production warrant issued by the Tribunal Tribunal-1 the accused was produced before the Tribunal Tribunal-1 by the prison authority and then he was shown arrested as an accused before the Tribunal.

Accordingly, since The Tribunal Tribunal-1 took cognizance of offences against the accused having found prima facie case in consideration of the documents together with the Formal Charge submitted by the prosecution. At this stage, the Tribunal-1, on application filed by the Chief Prosecutor, ordered for transmission of the case record to this Tribunal-2 under section 11A 1 of the Act of Tribunal ICT-2 , finally, framed six charges by its order dated 28 May Prosecution, during trial, adduced and examined as many as 12 witnesses including the Investigation Officers.

On the other hand, defence examined in all 06 witnesses including the accused himself. Eventually, prosecution's summing up of case under section 10 1 i of the Act of was heard for 09 and half hours while the defence placed summing up of its own case by taking about 25 hours. Applicable laws The proceedings before the Tribunal shall be guided by the International Crimes Tribunals Act , the Rules of Procedure formulated by the Tribunal under the powers given in section 22 of the Act.

Section 23 of the Act of prohibits the applicability of the Code of Criminal Procedure, and the Evidence Act Tribunal is authorized to take judicial notice of fact of common knowledge which is not needed to be proved by adducing evidence [Section 19 4 of the Act]. The Tribunal may admit any evidence [Section 19 1 of the Act].

The Tribunal shall have discretion to consider hearsay evidence too by weighing its probative value [Rule 56 2 ]. The defence shall have liberty to cross-examine prosecution witness on his credibility and to take contradiction of the evidence given by him [Rule 53 ii ]. Cross-examination is significant in confronting evidence. The Tribunal may receive in evidence statement of witness recorded by Magistrate or Investigation Officer only when the witness who has subsequently died or whose attendance cannot be procured without an amount of delay or expense which the Tribunal considers unreasonable [Section 19 2 of the Act].

But in the case in hand no such statement of witness has been received. The defence duly cross-examined all the prosecution witnesses. Fairness is the idea of doing what's best. It may not be perfect, but it's the good and decent thing to do.

It requires being level-headed, uniform and regular. In trying the offences under the general law, the court of law in our country does not rely on our own standards only, it considers settled and recognised jurisprudence from around the world. The ICT-2 guarantees the required procedural protections of the defendant's right to fair trial both in pre-trial phase and during trial The Act of and the Rules ROP framed there under explicitly compatible with the fair trial concept contained in the ICCPR.

The Tribunal-2, through judicial practices, has already developed the notion that each party must have a reasonable opportunity to defend its interests. It is to be mentioned that there has been not a single instance that any of accused person has been denied any of his right to have time necessary for preparation of his defense or interest.

Universally Recognised Rights of Victims The Tribunal notes that without fixing attention only to the rights of defence responsiveness also to be provided to the rights of victims of crimes as well. The victims of atrocities committed in within the territory of Bangladesh in violation of customary international law need justice to heal. Bangladesh considers that the right to remedy should also belong to victims of war crimes.

The State has an obligation to remedy serious human rights violations. Bangladesh recognizes Article 8 of the Universal Declaration of Human Rights and Article 2 3 of the International Covenant of Civil and Political Rights which ensure the right to an effective remedy for the violation of human rights. The way of adjudicating the charges Despite the indisputable atrociousness of the crimes committed during the war of liberation in in collaboration with the local perpetrators, we require to examine the facts constituting offences alleged and complicity of the accused therewith in a most dispassionate manner, keeping in mind that the accused is presumed innocent.

They are not designed to be a good reflex of a democratic society. Their judgemnt is best informed, and therefore most dependable, within narrow limits. Their essential quality is detachment, founded on independence.

History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures. Therefore, we have to resolve whether these crimes were committed and if so, whether the accused is guilty of those charges brought against him.

The prosecution, in the light of the charges framed, is burdened to prove- i commission of the crimes alleged ii mode of participation of the accused in committing any of crimes alleged ii how he acted in aiding and abetting or providing encouragement or moral support to the commission of any of crimes iii How he had complicity to commission of any of crimes iv the elements necessary to constitute the offence of crimes against humanity v liability of the accused.

Admittedly, the accused has been indicted for the crimes committed in violation of customary international law and thus this Tribunal shall not be precluded from borrowing guidance from the jurisprudence evolved to characterize the offences alleged as crimes against humanity.

Addressing legal issues agitated Before we enter into the segment of our discussion on adjudication of charges we consider it convenient to address and resolve the legal issues agitated during summing up of cases of both parties. It has been argued on this legal issue by the senior learned counsel for the defence Mr.

Abdur Razzak that there has been no limitation in bringing criminal prosecution but such inordinate delay of long 40 years must be explained. Having regard to above submission, we are of view that 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 , nor the Geneva Conventions of contain any provisions on statutory limitations to war crimes and crimes against humanity. Article I of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity adopted and opened for signature, ratification and accession by General Assembly resolution XXIII of 26 November 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. Still the Nazi war criminals of the Second World War are being prosecuted. Trials of genocides committed during the Chilean revolution and the Pol Pot regime of Cambodia in thes are now ongoing. It is a fact of common knowledge that in , Maurice Papon, who has died aged 96, was the minister for the budget in the administration of Prime Minister Raymond Barre, when his role in the deportation of French Jews during the Second World War was uncovered.

Papon had been charged in on the basis of his activities from to Eventually brought to trial, he was convicted in of complicity in crimes against humanity and sentenced to a year prison sentence for ordering the arrest and deportation of 1, Jews, including children, from the Bordeaux region to the Nazi death camps in Germany. In these forgotten papers he found evidence concerning the forced deportation of Jews from Bordeaux to the transit camp at Drancy, near Paris from where they were sent to the death camps , during the years to 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 favourable and stable political situation. The Statute was enacted in But the history says, after the dark episode of assassination of Bangabandhu Sheikh Mujibur Rahman and his family on 15 August the process was halted and even the Collaborators Order was repealed on The individuals and political organizations which played visibly a notorious and antagonistic role resisting the war of Liberation in were allowed of being rehabilitated and recognized in all spheres of state.

Democracy too remained halted till and there was no favourable situation, strong political will and consensus till to prosecute the offenders under the Act of This undisputed history of common knowledge itself is explanatory for delayed prosecution and thus the accused cannot be said to have been prosecuted and tried under the Act of for political purpose. Justice delayed is no longer justice denied, particularly when the perpetrators of core international crimes are brought to the process of justice.

However, there can be no recognised theory to insist that such a 'system crime' can only be pursued within a given number of years. Therefore, delayed prosecution does not rest as a clog in prosecuting and trying the accused and creates no mystification about the atrocities committed in It has been further submitted that the Act of and first amendment of the constitution will go to show that intention of the framers of the legislation was to prosecute and try the listed war criminals of Pakistan armed force and not the civilians.

Till the Act of was dormant and no Tribunal was constituted under it. Pursuant to the tripartite agreement of , listed war criminals of Pakistani armed force were allowed to walk free which was derogatory to jus cogens norm. The history says, for the reason of state obligation to bring the perpetrators of responsible for the crimes committed in violation of customary international law to justice and in the wake of nation's demand the Act of has been amended for extending jurisdiction of the Tribunal for bringing the perpetrator to book if he is found involved with the commission of the criminal acts constituting offences as enumerated in the Act of even in the capacity of an 'individual' or member of 'group of individuals'.

We are to perceive the intent of enacting the main Statute together with fortitude of section 3 1 of the Act. At the same time we cannot deviate from extending attention to the protection provided by the Article 47 3 of the Constitution to the Act of which was enacted to prosecute, try and punish the perpetrators of atrocities committed in War of Liberation. Thus, we hold that the contention raised by the defence is of no consequence to the accused in consideration of his legal status and accordingly the defence objection is not sustainable in law, particularly in the light of Article 47 3 and Article 47A 2 of the Constitution.

It has been argued by the learned senior defence counsel that pursuant to the 'tripartite agreement' dated Thus the matter of prosecuting and trying them under the Act of ended with this agreement. As regard local perpetrators who allegedly aided and abetted the Pakistani occupation armed force in committing atrocities including murder, rape, arson the government enacted the Collaborators Order Thus the Collaborator Order was the only legal instrument to bring the local perpetrators to book.

Having regard to above submission and careful look to the Act of and the Collaborators Order we are constrained to hold that it is not good enough to say that no 'individual' or member of 'auxiliary force' as stated in section 3 1 of the Act of can be brought to justice under the Act for the offence s enumerated therein for the reason that Pakistani war criminals belonging to Pak armed force were allowed to evade justice on the strength of 'tripartite agreement' of Such agreement was an 'executive act' and it cannot create any clog to prosecute member of 'auxiliary force' or an 'individual' or member of 'group of individuals' as the agreement showing forgiveness or immunity to the persons committing offences in breach of customary international law was derogatory to the existing law i.

It is settled that the jus cogens principle refers to peremptory principles or norms from which no derogatory is permitted, and which may therefore operate a treaty or an agreement to the extent of inconsistency with any such principles or norms. We are thus inclined to pen our convincing view that the obligation imposed on the state by the UDHR Universal Declaration of Human Rights and the Act of is indispensable and inescapable and as such the 'tripartite agreement' which is mere an 'executive act' cannot liberate the state from the responsibility to bring the perpetrators of atrocities and system crimes into the process of justice.

Amnesty shown to listed war criminals are opposed to peremptory norms of international law. It is to be noted that any agreement and treaty amongst states in derogation of this principle stands void as per the provisions of international treaty law convention [Article 53 of the Vienna Convention on the Law of the Treaties, ]. Despite the immunity given to listed war criminals belonging to Pakistani armed force on the strength of 'tripartite agreement' the provisions as contained in section 3 1 of the Act of has kept the entrance still unbolt to prosecute, try and punish them for shocking and barbaric atrocities committed in in the territory of Bangladesh.

It is to be noted that the perpetrators of crimes against humanity and genocide are the enemies of mankind. Therefore, we are of the view that the 'tripartite agreement' is not at all a barrier to prosecute local civilian perpetrators under the Act of The learned defence counsel has attempted to submit that the accused could have been prosecuted, tried and punished under the Collaborators Order , if actually he had committed any act of aiding or abetting to the commission of crimes alleged.

The Collaborators Order was a different legislation aiming to prosecute the persons responsible for the offences enumerated in the schedule thereof. It will appear that the offences punishable under the Penal Code were scheduled in the Collaborators Order While the Act was enacted to prosecute and try the 'crimes against humanity', 'genocide' and other system crimes committed in violation of customary international law.

There is no scope to characterize the offences underlying in the Collaborators Order to be the same offences as specified in the Act of Therefore, we are disinclined to accept the argument that merely for the reason that since the accused was not brought to justice under the Collaborators Order now he is immune from being prosecuted under the Act of It has been argued that the accused has been charged with for the offence of 'murder' the event of which will appear to be isolated and as such for such isolated crimes he could have been prosecuted and tried under the Collaborators Order which was meant to try the offences as scheduled therein i.

On this score as well the charges brought against the accused cannot be sustainable in law. Charles Taylor was indicted by the Prosecutor in when he was a sitting president and Head of State of Liberia. He was not prosecuted and tried together with any other offender or principal perpetrator. Therefore, we find that in law, either 'aiding' or 'abetting' alone is ample to render the perpetrator criminally liable.

The Act of has enumerated 'abetting' and 'aiding' as distinct offence and punishable there under. From the jurisprudence evolved in the ICTR and SCSL it is now settled that even only the abettor and aider to perpetration of crimes underlying in the statutes can be prosecuted. The above international references also consistently supplement our own view that 'abetting' or 'aiding' being distinct offence in the Act of the persons responsible for any of these unlawful acts that substantially facilitated the commission of offence enumerated in section 3 2 a c can lawfully be brought to justice.

The learned defence counsel has argued that the offences specified in section 3 2 are not well defined and the same lack of elements. Section 3 2 of the ICTA does not explicitly contain the 'widespread or systematic' element for constituting the crimes against humanity. In this regard this Tribunal may borrow the elements and definition of crimes as contained in the Rome Statute.

It has been further argued that an 'attack' may be termed as 'systematic' or 'widespread' if it was in furtherance of policy and plan. Thus the offence if actually happened, in absence of context and policy and plan the same cannot be characterized as crimes against humanity. Tribunal notes that 'policy' and 'plan' are not the elements to constitute the offence of crimes against humanity.

It is true that the common denominator of a systematic attack is that it is carried out pursuant to a preconceived policy or plan. But these may be considered as factors only and not as elements. This view finds support from the observation made in paragraph 98 of the judgment in the case of prosecutor v. Kunarac [Case No. Thus, the existence of a policy or plan may be evidently relevant, but it is not a legal element of the crime. It is further submitted that the ICTY Statute does not contain the 'widespread' or 'systematic' element but it has developed jurisprudence by its judgment in the case of Tadic Appeal Chamber: ICTY that for qualifying the offences as crimes against humanity it must be committed as part of 'widespread' or 'systematic' attack.

But the prosecution has utterly failed to show by evidence that the offences for which the accused has been charged with were part of the 'widespread' or 'systematic' attack. We are of patent view that section 3 2 a of the Act is self contained and fairly compatible with the international jurisprudence.

If we make a closer look to the contemporary standards of definition of 'Crimes against Humanity' in various Statutes, first this observation can be made that there is no 'consistency' among definitions. The definition of 'Crimes against humanity' as contemplated in Article 5 of the ICTY Statute neither requires the presence of 'Widespread and Systematic Attack' nor the presence of 'knowledge' thereto as conditions for establishing the liability for 'Crimes against Humanity'.

It is the jurisprudence developed in ICTY that identified the 'widespread' or 'systematic' requirement. But, the Rome Statute says, the definition etc. Thus, our Tribunal ICT which is a domestic judicial body constituted under a legislation enacted by our Parliament is not obliged by the provisions contained in the Rome Statute. The Rome Statute is not binding upon this Tribunal for resolving the issue of elements requirement to constitute the offence of crime against humanity.

If the specific offences of 'Crimes against Humanity' which were committed during are tried under Act, it is obvious that they were committed in the 'context' of the war. This context itself is sufficient to prove the existence of a 'systematic attack' on Bangladeshi self-determined population in It is the 'context' that transforms an individual's act into a crime against humanity and the accused must be aware of this context in order to be culpable of crime alleged.

Conducts constituting 'Crimes' 'committed against civilian population' thus refers to organized and systemic nature of the attack causing acts of violence to the number of victims belonging to civilian population. Therefore, the claim as to the non-existence of a consistent international standard for the definition of 'crimes against humanity' as enumerated in the Act of is manifestly baseless. The learned senior counsel reiterated that the mens rea element is absent in this case as there has been no facts and circumstances that could validly lead to inference that the accused acted knowing the consequence of the attack and context thereof.

It appears that only one paragraph in the Tadic judgment refers to this question, and it summarily considers existing case law on whether or not the perpetrator of crimes against humanity must have knowledge of the context within which the acts are committed. Tadic , Case No. ITT, opinion and judgment, 7 May , para ]. The mens rea of the offences was not considered, most likely because Dusko Tadic offered an alibi defence, which does not raise questions about intent, and simply denies that the accused was present or involved when the crime was committed.

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Wilcox v. Jeffery Case Brief Summary - Law Case Explained

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