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ICT-BD 03 of 2013 ICT[2]-BD Case No. 03 of 2013 Chief Prosecutor v Mir Quasem Ali International Crimes Tribunal-2 [ICT-2] [Tribunal constituted under section 6 (1) of the Act No. XIX of 1973] Old High Court Building, Dhaka, Bangladesh ICT-BD Case No. 03 of 2013 [Charges: crimes against Humanity and aiding & complicity to commit such crimes as specified in section 3(2)(a)(g)(h) of the Act No. XIX of 1973] The Chief Prosecutor Vs Mir Quasem Ali Before Justice Obaidul Hassan, Chairman Justice Md. Mozibur Rahman Miah, Member Justice Md. Shahinur Islam, Member For the Prosecution: Mr. Golam Arief Tipoo, Chief Prosecutor Mr. Rana Das Gupta, Prosecutor Mr. Zead Al Malum , Prosecutor Mr. Sultan Mahmud, Prosecutor Ms. Tureen Afroz, Prosecutor Ms. Rezia Sultana Begum, Prosecutor Mr. Tapas Kanti Baul, Prosecutor . For the Accused: Mr. Mizanul Islam , Advocate Mr. Tanveer Ahmed Al Amin , Advocate, Bangladesh Supreme Court Date of delivery of Judgement: 02 November 2014 JUDGEMENT [Under section 20(1) of the Act XIX of 1973] 1 ICT[2]-BD Case No. 03 of 2013 Chief Prosecutor v Mir Quasem Ali Justice Obaidul Hassan, Chairman Justice Md. Shahinur Islam, Member I. Opening words This is the seventh case in which we [ICT-2] are going to render our verdict, on wrapping up of trial in presence of accused Mir Quasem Ali. The commendable efforts extended by both sides, at all stages of proceedings have provided significant assistance to the Tribunal[ICT-2] to focus on pertinent issues involved in the case indeed. We extend our appreciation for the laudable and professional presentation made on part of the learned prosecutors and the learned defence counsels. Mir Quasem Ali [born in 1952] has been arraigned of internationally recognized crimes i.e. crimes against humanity committed in 1971 in the territory of Bangladesh, during the War of Liberation, under the International Crimes (Tribunals) Act, 1973. On conclusion of trial that commenced on framing charges on 05 September 2013 this Tribunal [ICT- 2], a domestic special judicial forum constituted under the International Crimes (Tribunals) Act, 1973 is here today to render its Judgement and verdict. We have considered it indispensable and relevant to address the settled and undisputed historical and contextual background that prompted the Pakistani occupation army and its local collaborators in carrying out horrendous atrocities within the territory of Bangladesh before we enter into the discussion on legal and factual aspects involving characterization of crimes, commencement of proceedings, procedural history reflecting the entire proceedings, charges framed, in brief, and the laws applicable to the case for the purpose of adjudicating the commission of alleged offences as narrated in the charges framed and also for arriving at a finding as to alleged culpability of the accused. It is to be noted that particularly in resolving legal issues we will make reiteration of our deliberations and finding on it given in the cases disposed of earlier including the cases of Chief Prosecutor v. Md. Abdul Alim [ICT- BD Case No. 01 of 2012 Judgment: 09 October 2013] and Chief prosecutor 2 ICT[2]-BD Case No. 03 of 2013 Chief Prosecutor v Mir Quasem Ali v. Ali Ahsan Muhammad Mujahid [ICT-BD Case No. 04 of 2012 Judgment: 17 July 2013] with necessary addition. Finally, on broad and cautious appraisal of evidence adduced, we have to render our reasoned finding on commission of alleged crimes and alleged culpability of the accused, as narrated in the charges, by making independent adjudication. Now, having regard to section 10(1) (j), section 20(1) and section 20(2) of the International Crimes (Tribunals) Act, 1973[Act No. XIX of 1973] this ‘Tribunal’ known as International Crimes Tribunal-2 (ICT-2) hereby renders and pronounces the following unanimous judgment. II. Commencement of proceedings 1. The Prosecution filed the ‘formal charge’ in the form of petition as required under section 9(1) and Rule 18(1) of the Rules of Procedure 2010 [ICT-1] against accused Mir Quasem Ali. After affording due opportunity of preparation to accused, the Tribunal [ICT-1], took cognizance of offences as mentioned in section 3(2) (a)(b)(c) (g)(h) of the Act of 1973. Afterwards, the Tribunal-1[ICT-1] framed 14 charges on distinct events of criminal acts constituting the offences of ‘crimes against humanity’ and as specified in the Act of 1973 .The charges so framed were read out and explained to the accused Mir Quasem Ali in open court when he pleaded not guilty and claimed to be tried and thus the trial commenced. III. Introductory Words 2. The 2nd Tribunal [ICT-2] has been set up on 22 March 2012. The notion of ‘fairness’ and ‘due process’ as have been reflected in the International Crimes (Tribunals) Act, 1973[hereinafter referred to as Act of 1973] and the Rules of Procedure, 2012 (ROP) formulated by the Tribunal [ICT-2] under the powers conferred in section 22 of the principal Act is significantly well-matched with the recognized norms and jurisprudence evolved and international instruments including the ICCPR. Additionally, the Tribunal [ICT-2] in exercise of its judicial discretion and its inherent power [Rule 46A of the ROP] ensured all the rights and privileges indispensable for due defence, on prayer of the accused. 3 ICT[2]-BD Case No. 03 of 2013 Chief Prosecutor v Mir Quasem Ali 3. The Act XIX enacted in 1973 which is meant to prosecute crimes against humanity, genocide and system crimes committed in violation of customary international law is ex-post facto legislation. It is literally permitted. It is to be noted that the ICTY, ICTR and SCSL the adhoc Tribunals backed by the United Nations (UN) have been constituted under their respective retrospective Statute. Only the International Criminal Court (ICC) is founded on prospective Statute [Rome Statute]. The 1973 Act of Bangladesh has the merit and means of ensuring the standard of safeguards recognized universally to be provided to the person accused of crimes against humanity as specified in the Act of 1973. IV. Jurisdiction of the Tribunal 4. The Act of 1973 is intended 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 member of ‘group of individuals’ or ‘organisation’ [as amended with effect from 14.7.2009]. It is thus manifested from section 3(1) of the Act of 1973 that even any person (individual), if he is prima facie found accountable either under section 4(1) or 4(2) of the Act of 1973 for the perpetration of offence(s) enumerated in the Act of 1973, can be brought to justice . 5. We reiterate that the Tribunal constituted under the Act of 1973 is absolutely a domestic Tribunal but meant to try internationally recognized crimes or ‘system crimes’ committed in violation of customary international law during the war of liberation in 1971 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 mistaken to assume that the Tribunal must be treated as an ‘‘International Tribunal’’. V. Brief Historical Background and context 6. It is now globally recognized history that atrocious and dreadful crimes were committed during the nine-month-long war of liberation in 1971, which resulted in the birth of Bangladesh, an independent state and the long 4 ICT[2]-BD Case No. 03 of 2013 Chief Prosecutor v Mir Quasem Ali cherished motherland of the Bengali nation. Justice Surendra Kumar Sinha has observed in his judgment rendered in the case of Abdul Quader Molla [Page 42 of the Judgment] that What has happened in Bangladesh is nothing short of genocide. If what Hitler did in Germany and Poland was an example of racial genocide, if the tragedy of Jallianwala Bagh was an example of colonial genocide by the use of armed might, what happened in Bangladesh was no less a case of cultural and political genocide on a scale unknown to history. The whole of Bangladesh became truly a Jallianwala Bagh, hallowed and sanctified by the blood of patriotic martyrs and innocent defenceless people; whose only fault was that they were somewhat different than those who came to rule them from Pakistan. If Bangladesh has survived the onslaught and has been able to confine more than three divisions of Pakistan’s Army to cantonments and towns, it is because the people of Bangladesh, who laid down their lives at the altar of freedom to pay the price of liberty in the coin of blood and sufferings and did not permit the Pakistani troops to clamp colonial rule on the 75 million people of Bangladesh. [Source: War Crimes and Genocide, B.N. Mehrish, P.173.] 7. 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. This has now been a settled catastrophic history. During the 1971 nine-month war between East Pakistan (now 5 ICT[2]-BD Case No. 03 of 2013 Chief Prosecutor v Mir Quasem Ali Bangladesh) and West Pakistan (now Pakistan), approximately 3 million people died. [Source: Rounaq Jahan, “Genocide in Bangladesh,” in Samuel Totten, William S. Parsons and Israel W. Charny (eds), Century of Genocide: Eyewitness Accounts and Critical Views (New York and London: Garland, 1997), p. 291.] Pakistani soldiers raped between 200,000 and 400,000 Bangladeshi women and girls.[Source: P.
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