International Crimes Tribunal-1 (ICT-1) Old High Court Building, Dhaka, Bangladesh. ICT-BD Case No.05 OF 2013 [Charges:- Crimes against Humanity, genocide, abetment and complicity in committing such crimes as specified in section 3(2)(a)(c)(g)(h) read with section 4(1) and 4(2) of the Act No. XIX of 1973] The Chief Prosecutor Versus A.T.M Azharul Islam Present: Mr. Justice M. Enayetur Rahim, Chairman Mr. Justice Jahangir Hossain, Member Mr. Justice Anwarul Haque, Member Date of delivery of Judgment on 30th December, 2014. Prosecutors: Mr. Golam Arif Tipu, the Chief Prosecutor Mr. Zead Al-Malum Mr. Sultan Mahmud Ms. Turin Afroz Ms. Rezia Sultana Begum and Mr. Taposh Kanti Baul Defence counsels: Mr. Md. Abdur Razzak, senior counsel Mr. Abdus Sobhan Tarafder Mr. Tajul Islam Mr. Mohammad Shishir Munir Mr. Md. Asaduddin Judgment [Under section 20(1) of the Act No.XIX of 1973] I. Introductory Words 01. Accused A.T.M Azharul Islam son of late Dr. Nazir Hossain and late Romicha Begum of village-Batason Lohanipara, Police Station- 2 Badargonj, District-Rangpur and Flat No.6A, F. Tower, 91/B, Elephant Road, Boro Mogbazar, Police Station-Ramna, District-Dhaka has been put on trial before this Tribunal at the instance of the Chief Prosecutor to answer charges under section 3(2)(a)(c)(g)(h) read with section 4(1) and 4(2) 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 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 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 following manner: "(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 3 after the 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; (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; 4 (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, illtreatment 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 or public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity; (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 5 the preamble nor in the jurisdiction sections of the Act 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 International Crimes (Tribunals) Act, 1973 where jurisdictions of the Tribunal and crimes have been stated. Now let us see the jurisdiction of the other Internation Tribunals and defination of crimes against Humanity provided in other statues 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 6 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 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 [ICTR] 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 Intionalnation Criminal Tribunal for Rwanda [Article 3] the jurisdiction of the Tribunals were given to try offences of 'crimes against humanity' such as murder, extramination, depotation, torture, rape etc. of the person/ persons when the offences committed as a widespread or 7 systematic attack directed against any civilian population or national, ethnic, racial or religious grounds. According to ICTY [Article 5] existance of armed confict is the key element to try offences of crimes against humanity, directed against the civilian population. 10. But Apppellate Division of our Supreme Court in the case of Abdul Quader Molla Vs. Government of Bangladesh, vis-a-vis has observed to the effect [majority view]: "Whereas, under our Act, 1973 the tribunal has jurisdiction to prosecute and punish any person irrespective of his nationality who being a member of any armed, defence or auxiliary forces commits, whether before or after the commencement of the Act, Crimes against Humanity, Crimes against Peace, Genocide and other crimes connected therewith during the period of war of liberation. The offences of murder, extermination, rape or other inhumane acts committed against civilian population or persecutions on political, racial, ethnic or religious grounds are included in the offence of crimes against Humanity. " "For commission of the said offence [crimes against Humanity], the prosecution need not require to prove that while committing any of offences there must be 'widespread and systematic' attack against 'civilian population'. It is sufficient if it is proved that any person/ persons attack against 'civilian population'. It is sufficient if it is proved that any person/ persons committed such offence during the said period or participated or attempted or conspired to commit any such crime during operation search light in collaboration with the Pakistani Regime upon unarmed civilian with the aim of frustrating the result of 1970 8 National Assembly election and to deprive the fruits of the election result." [Page,241-242]. 11. In view of the above observation of the Appellate Division it is now well settled that in our jurisdiction for constituting the offence of crimes against Humanity the element 'the attack must be widespread and systematic against civilian population' is not at all necessary or mandatory.