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International Crimes Tribunal-1 (ICT-1) Old High Court Building, Dhaka, Bangladesh ICT-BD Case No.01 of 2015

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International Crimes Tribunal-1 (ICT-1) Old High Court Building, Dhaka, Bangladesh ICT-BD Case No.01 of 2015 International Crimes Tribunal-1 (ICT-1) Old High Court Building, Dhaka, Bangladesh ICT-BD Case No.01 OF 2015 [Charges:- Participating, abetting, contributing, facilitating and complicity in the commission of offences constituting crimes against humanity as specified in section 3(2)(a)(g)(h) of the Act No. XIX of 1973] The Chief Prosecutor Versus 1. Shamsuddin Ahmed 2. Gazi Md. Abdul Mannan [absconded] 3. Nasiruddin Ahmed alias Md. Nasir alias Captain ATM Nasir [absconded] 4. Md. Hafizuddin [absconded], and 5. Md. Azharul Islam [absconded] Present: Mr. Justice Anwarul Haque, Chairman Mr. Justice Md. Shahinur Islam, Member Mr.Justice Md. Shohrowardi, Member Prosecutors: Mr. Golam Arif Tipu, Chief Prosecutor with Mr. Syed Haider Ali Mr. Rana Das Gupta Mr. Zead-Al-Malum Mr. Hrishikesh Saha Mr. Sultan Mahmud Mr. Md. Altab Uddin Ms. Turin Afroz Mr. Abul Kalam Mr. Md. Zahid Imam Ms. Rezia Sultana Mr. Tapas Kanti Baul Defence Counsels: Mr. M. Masud Rana ... For accused Shamsuddin Ahmed Mr. Abdus Sukur Khan ... State defence counsel for absconding accused Gazi Md. Abdul Mannan, Nasiruddin Ahmed alias Md. Nasir alias 2 Captain ATM Nasir, Md. Hafizuddin and Md. Azharul Islam Date of delivery of Judgment: 3 May 2016. JUDGMENT [Under section 20(1) of the Act No.XIX of 1973] I. Introductory Words 01. Accused (1) Shamsuddin Ahmed son of late Abdur Razzak Munshi and late Safurennesa alias Lutfor Nahar Lata of village Karimganj Modhopara (Dulipara), Police Station Karimganj, District- Kishoreganj, at present 411/1, Banani Morh, Chorsholakia, Police Station Kishoreganj, District Kishoreganj, (2) Gazi Md. Abdul Mannan son of late Ibrahim and late Moharajer Ma of village Charpara, Police Station Karimganj, District Kishoreganj, (3) Nasiruddin Ahmed alias Md. Nasir alias Captain ATM Nasir son of late Abdur Razzak and late Safurennesa alias Lutfor Nahar Lata of village Karimganj Modhopara (Dulipara), Police Station Karimganj, District Kishoreganj, at present 270, Charsholakia (Zenith View Bananir Morh), Police Station Karimganj, District Kishoreganj, (4) Md. Hafizuddin son of late Ismat Ali and late Mosammat Fulbanu of House No. 129, Village- Khudir Jangal, Police Station- Karimganj, District Kishoreganj, and (5) Md. Azharul Islam son of late Md. Abdur Rahim and late Mosammat Umme Saleh of village Haidhonkhali, Police Station Karimganj, District Kishoreganj have been put on trial before this Tribunal-1 at 3 the instance of the Chief Prosecutor to answer charges under section 3(2)(a)(g)(h) read with section 4(1) of the International Crimes (Tribunals) Act, 1973. 02. This International Crimes Tribunal-1 [hereinafter referred to as the "Tribunal"] was established under the International Crimes (Tribunals) Act enacted in 1973 [hereinafter referred to as the 'Act of 1973'] by Bangladesh Parliament to provide for the detention, prosecution and punishment of persons responsible for genocide, crimes against humanity, war crimes and other class crimes committed in the territory of Bangladesh, in violation of customary international law, particularly in between the period of 25 March and 16 December, 1971. However, no Tribunal was set up, and as such, no one could be brought to justice under the Act of 1973 until the government established the Tribunal on 25 March, 2010. II. Jurisdiction of the Tribunal under ICT Act of 1973. 03. The International Crimes (Tribunals) Act, 1973 states about the jurisdiction of the Tribunal and crimes in section 3 as follows: "(1) A Tribunal shall have the power to try and punish any individual or group of individuals, or organisation, or any member of any armed, defence or auxiliary forces, irrespective of his nationality, who commits or has committed, in the territory of Bangladesh , whether before or after the 4 commencement of this Act, any of the crimes mentioned in sub-section(2). (2) The following acts or any of them are crimes within the jurisdiction of a Tribunal for which there shall be individual responsibility, namely:- (a) Crimes against Humanity: namely, murder, extermination, enslavement, deportation, imprisonment, abduction, confinement , torture, rape or other inhumane acts committed against any civilian population or persecutions on political, racial, ethnic or religious grounds, whether or not in violation of the domestic law of the country where perpetrated; (b) Crimes against Peace: namely, planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances; (c) Genocide: meaning and including any of the following acts committed with intent to destory, in whole or in part, a national, ethnic, racial, religious or political group, such as: (i) killing members of the group; 5 (ii) causing serious bodily or mental harm to members of the group; (iii) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (iv) imposing measures intended to prevent births within the group; (v) forcibly transferring children of the group to another group; (d) War Crimes: namely, violation of laws or customs of war which include but are not limited to murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population in the territory of Bangladesh; murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages and detenues, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity; 6 (e) violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949; (f) any other crimes under intenational law; (g) attempt, abetment or conspiracy to commit any such crimes; (h) complicity in or failure to prevent commission of any such crimes." To our understanding the proper construction of this section should be- 04. Crimes against humanity can be committed even in peace time; existence of armed conflict is, by definition, not mandatory. Neither in the preamble nor in the jurisdiction sections of the Act of 1973 was it mentioned that crime against humanity requires the existence of an armed conflict. Indiscriminate attack on civilian population based on their political, racial, ethnic or religious identity can be termed as crimes against humanity even if it takes place after 1971. However, no one denies the fact that there was an armed conflict in 1971. III. Consistency of the Act of 1973 with other Statutes on International Crimes 05. We have already quoted section 3 of the International Crimes (Tribunals) Act, 1973 where jurisdiction of the Tribunal and crimes 7 have been stated. Now let us see the jurisdiction of other International Tribunals and definition of crimes against humanity provided in their Statutes on international crimes. Article-7 of the Rome Statute 06. According to Article 7 of the Rome Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane 8 acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. Article 3 of the ICTR 07. The International Criminal Tribunal for Rwanda [ICTR] shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds of (a) murder, (b) extermination, (c) enslavement, (d) deportation, (e) imprisonment, (f) torture, (g) rape, (h) persecutions on political, racial and religious grounds and (i) other inhumane acts. Article 5 of the ICTY 08. The International Criminal Tribunal for former Yugoslavia [ICTY] shall have the power to prosecute persons responsible for the (a) murder, (b) extermination, (c) enslavement, (d) deportation, (e) imprisonment, (f) torture, (g) rape, (h) persecutions on political, racial and religious grounds and (i) other inhumane acts when committed in armed conflict, whether international or internal in character, and directed against any civilian population. 09. Under the Rome Statute [Article 7] and Statute of the International Criminal Tribunal for Rwanda [Article 3] the jurisdiction of the Tribunals were given to try offences of 'crimes 9 against humanity' such as murder, extermination, deportation, torture, rape etc. of the person / persons when the offences committed as a widespread or systematic attack directed against any civilian population on national, ethnic, racial or religious grounds. According to ICTY [Article 5] existence of armed conflict is the key element
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