Judicial Notice, Shahbaghh Movement and Criticism:
Freshness and positivity for International Crimes Tribunal
BARRISTER TAPAS K. BAUL and BARRISTER FATIMA JAHANGIR CHOWDHURY provide some of the legal details for a clearer understanding of the judgments
made in the war crimes trial so far.
The International Crimes Tribunal No. 2 of Bangladesh made history on 21 January, 2013 by sentencing Abul Kalam Azad alias Bacchu Razakar to death, in its first judgment, for committing genocide and crimes against humanity in Faridpur area during the Liberation War. The court ordered Azad death by hanging as seven out of eight charges have been proven beyond reasonable doubt against him. After that on 5 February, 2013, Tribunal 2 pronounced the judgment in Quader Mollah's case, where in spite of finding the accused guilty of crimes against humanity beyond reasonable doubt in five out of six charges, sentenced him to a single sentence of “imprisonment for life for charge nos. 5 and 6 and also for the crimes as listed in charge nos. 1, 2 and 3 to a single sentence of 'imprisonment for fifteen (15) years' under section 20(2) of the Act of 1973.”
The first verdict on the war crimes signalled the beginning of a process that raised expectations to see more such verdicts for crimes during the 1971 war that led to Bangladesh's independence. However, the sentencing of the second verdict clearly went against the expectation of the mass people of the country, especially the young ones who, immediately after the pronouncement, got hold of Shahbagh chottor, which is now known as Projonmo chottor or Projonmo Square and till 21 February, 2013 they were occupying the square in demand of reversing the life sentence to death sentence of Quader Mollah. Not only that, they are also demanding death sentence for every razakar in the country along with the prohibition of all sorts of activities of Jamaat-i-Islami, Chhatra Shibir and its financial allies. Following their protest, one of their demands that the International Crimes Tribunal Act, 1973 (hereafter ICTA '73) be amended to empower 'the government, informants and complainants to appeal against any verdict of the war crimes tribunals with the Appellate Division of the Supreme Court' has been met and the amendment has been made with a bonus provision which is to empower 'the tribunals to try various organisations alongside individuals for crimes against humanity committed during the 1971 Liberation War' (The Daily Star, February 18, 2013). This is a big win for the Shahbagh protesters. Hats off to them!
The second war crimes tribunal of Bangladesh in both the verdicts, sentencing Abul Kalam Azad to death and Quader Mollah to life imprisonment, also addressed a number of legal issues, as judicial notice, that have long been topics of debate in almost all the cases. Soon after the second verdict, criticisms were made about the ability of the Prosecution as well which, in our view with all due respect, is created due to misconception about the 1973 Act and procedure of these Tribunals. We will try to address both the issues in this article. At first, we would like to elaborate on the legal principle surrounding judicial notice.
Judicial notice is an important tool for expediting trials and, particularly in the delay-plagued tribunals like International Crimes Tribunal of Bangladesh, it will be used more frequently as it is frequently used in other delay-plagued tribunals like ICTR and ICTY. Judicial notice, a legal doctrine whereby a court may accept a fact as proven with the submission of limited or no evidence, is well established in national jurisdictions. Judicial notice is ingrained in the jurisprudence of common law systems, and some civil law jurisdictions have adopted the doctrine as well. Generally, a court may employ judicial notice where the fact under review is so well known that it is not subject to reasonable dispute or can be readily and authoritatively verified. Classic examples of proper subjects for judicial notice are “generally known” facts, such as that “a shotgun is a dangerous and deadly weapon,” “a fortnight is too short a period for human gestation,” or that “cats are kept for domestic purposes.” In addition, judicial notice has traditionally been taken of facts that are verifiable, such as dates of the Islamic calendar and established scientific principles. Judicial notice serves a number of important functions in legal proceedings. First, the doctrine promotes efficiency in the legal system. It can allow a court to dispense with the time-consuming adversarial process, a particular benefit when the fact is something as simple as “cats are kept for domestic purposes.” In addition, judicial notice allows a court to maintain “intellectual honesty” with regard to certain facts, such as accepting the results of established scientific tests even though many such tests have some room for error. Finally, the doctrine allows a court or system of courts to maintain uniform interpretations of commonly reviewed facts (Mamiya, 2007).
Now, the provisions regarding judicial notice for the purpose of International Crimes Tribunal is described in section 19 (3) and (4) of ICTA '73, which is --
(3) A Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof.
(4) A Tribunal shall take judicial notice of official governmental documents and reports of the United Nations and its subsidiary agencies or other international bodies including non-governmental organisations.
While reading this section, one should know that there are two parts to the doctrine of judicial notice, i.e., facts of “common knowledge” and facts that have been “previously adjudicated”. It is pertinent to mention here that, we will see lots of these facts of judicial notices in the upcoming judgments. Hence, critics and supporters alike should have a common knowledge about these facts. Now, we present the facts of common knowledge as expressed in both the judgments.
“There should be no ambiguity that even under retrospective legislation (Act XIX enacted in 1973) initiation to prosecute crimes against humanity, genocide and system crimes committed in violation of customary international law is fairly permitted. It is to be noted that the ICTY, ICTR and SCSL the judicial bodies backed by the United Nations (UN) have been constituted under their respective retrospective Statutes. Only the International Criminal Court (ICC) is founded on prospective Statute.” (Quader Molla's Judgment: Page No. 3, Para 3, Moulana Abul Kalam Azad's Judgment: Page 7, Para 14)
Compatibility with International Standard of Fair Trial (Art 14, ICCPR)
“Bangladesh Government is a signatory to and has ratified the International Covenant for Civil and Political Rights (ICCPR), along with its Optional Protocol. It is necessary to state that the provisions of the ICTA 1973 [(International Crimes (Tribunals) Act, 1973] and the Rules framed there under offer adequate compatibility with the rights of the accused enshrined under Article 14 of the ICCPR. The 1973 Act of Bangladesh has the merit and mechanism of ensuring the standard of safeguards recognized universally to be provided to the person accused of crimes against humanity.” (Quader Molla's Judgment:
Page 3, Para 4; Moulana Abul Kalam Azad Judgment: Page 7, Para 15)
Jurisdiction of the Tribunal
“The Act of 1973 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 1973 cannot be prosecuted. Rather, it is manifested from section 3(1) of the Act of 1973 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 1973. Thus, the Tribunal set up under the Act of 1973 are absolutely domestic Tribunal but meant to try internationally recognized 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 wrong to assume that the Tribunal must be treated as an 'International Tribunal'.” (Quader Molla's Judgment: Page 4, Para 5, Moulana Abul Kalam Azad
Judgment: Page 8, Para 17 Profile of Collaborators in 1971)
Collaborators (a group of people) as a team with Pakistan Army
“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.” (Quader Molla's Judgment: Page 6, Para 13)
Victims' right to remedy under UDHR and ICCPR
“The victims of atrocities committed in 1971 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.” (Quader Molla's Judgment: Page 17, Para 45)
Common knowledge on accessory forces and affect of their atrocities
“We take the fact of common knowledge which not even reasonably disputed that, during that time parallel forces e.g Razaker Bahini, Al-Badar Bahini, Peace Committee were formed as accessory forces of the Pakistani occupation armed force who provided moral supports, assistance and substantially contributed to the commission of atrocities throughout the country into our notice. Thousands of incidents happened throughout 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'.” (Quader Molla's Judgment: Page 26, Para 75)
Does unexplained Delay frustrate the prosecution's case?
“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 1948, nor the Geneva Conventions of 1949 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 2391 (XXIII) of 26 November 1968 provides protection against even any statutory limitation in prosecuting crimes against humanity, genocide etc. Thus, criminal prosecutions are always open and not barred by time limitation.” (Quader Molla's Judgment: Page 29, Para 82; Moulana Abul Kalam Azad Judgment: Page 18, Para 43)
On statutory limitation and state inaction
“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.” (Quader Molla's Judgment: Page 31, Para 87; Moulana Abul Kalam Azad Judgment: Page 19 Para 45)
Crimes of the extreme magnitude never get old
“Crimes against humanity and genocide, the gravest crime never get old and 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 recognized 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 1971.” (Quader Molla's Judgment: Page 32, Para 91)
Tripartite agreement and immunity to 195 Pakistani war criminals
“It is true that initially the Act of 1973 was enacted to prosecute try and punish the 195 listed war criminals of Pakistani occupation armed force and their 'auxiliary force'. Till 2009 the Act of 1973 was dormant and no Tribunal was constituted under it. Pursuant to the tripartite agreement of 1974, 195 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 responsible for the crimes committed in violation of customary international law to justice and in the wake of nation's demand the Act of 1973 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 1973 even in the capacity of an 'individual' or member of 'group of individuals'.” (Quader Molla's Judgment: Page 34, Para 96)
“Having regard to above submission and careful look to the Act of 1973 and the Collaborators Order 1972 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 1973 can be brought to justice under the Act for the offence(s) enumerated therein for the reason that 195 Pakistani war criminals belonging to Pak armed force were allowed to evade justice on the strength of 'tripartite agreement' of 1974. (Quader Molla's Judgment: Page 36, Para 104; Moulana Abul Kalam Azad Judgment: Page 23, Para 61)
Tri-partite agreement: Inconsistent with the jus cogens principle
“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 1973 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. (Quader Molla's Judgment: Page 37, Para 106; Moulana Abul Kalam Azad Judgment: Page 7, Para 16)'
Executive Act' cannot derogate any internationally recognised obligation
“As state party of Universal Declaration of Human Rights (UDHR) and Geneva Convention Bangladesh cannot evade obligation to ensure and provide justice to victims and sufferers of those offences and their relatives who still suffer the pains sustained by the victims and as such an 'executive act' (tripartite agreement) can no way derogate this internationally recognized obligation. Thus, any agreement or treaty if seems to be conflicting and derogatory to jus cogens (compelling laws) norms does not create any hurdle to internationally recognized state obligation.” (Quader Molla's Judgment: Page 37, Para 107; Moulana Abul Kalam Azad Judgment: Page 7, Para 16)
The Collaborators Order 1972 and the ICTA 1973
“The Collaborators Order 1972 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 1972. While the 1973 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 1972 to be the same offences as specified in the Act of 1973.” (Quader Molla's Judgment: Page 39, Para 113)
“The argument that the accused was not tried under Collaborators Act is not accepted. 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 1972 now he is immune from being prosecuted under the Act of 1973.” (Quader Molla's Judgment: Page 39, Para 115)
Prosecuting an aide or abettor without prosecuting the Principals and his accomplices
“The Act of 1973 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. The above international references also consistently supplement our own view that 'abetting' or 'aiding' or conspiracy' being distinct offence in the Act of 1973 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. (Quader Molla's Judgment: Page 41, Para 121)
Definitions in the Rome Statute are not applied for ICT-BD
“True, the Rome Statute (a prospective statute) definition differs from that of both ICTY and ICTR Statutes. But, the Rome Statute says, the definition etc. contained in the Statute is 'for the purpose of the Statute'. So, use of the phrase “for the purpose of the Statute” in Article 10 of the Rome Statute means that the drafters were not only aware of, but recognized that these definitions were not the final and definitive interpretations, and that there are others. 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 crimes against humanity.” (Quader Molla's Judgment:Page 44, Para 129)
Crimes against Humanity during 1971 war: part of systematic attack of the ongoing atrocities
“If the specific offences of 'Crimes against Humanity' which were committed during 1971 are tried under 1973 Act, it is obvious that they were committed in the 'context' of the 1971 war. This context itself is sufficient to prove the existence of a 'systematic attack' on Bangladeshi self-determined population in 1971. 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. The Tribunal, as per section 19(3) of the 1973 Act, shall not require proof of facts of common knowledge; it shall take judicial notice of such fact. The specific offences committed as 'Crimes against Humanity' during 1971 war, were very much a part of a 'systematic attack' of the ongoing atrocious activities. (Quader Molla's Judgment: Page 44, Para 130)
It is greatly expected that these facts of common knowledge recognised by the Tribunal-2 will definitely settle lots of unanswered questions raised by the experts of international criminal law, both national and international, once and for all. The youths of the country, who whole-heartedly want these collaborators to be punished, can now refer to these facts of common knowledge and can answer questions put to them, both on and off line, by the supporters of collaborators, i.e., Jamaat-e-Islami.
Regarding criticism of the Prosecution team, we would like to raise a few points. First, even though it is not mentioned in ICTA, it has become a custom that the concerned Tribunal passes a charge framing order after the formal charges (formal charge is there in the act, but a charge framing order is not required under the act) are submitted by the Prosecutor. Under the 1973 Act both the Tribunals enjoy wide power to choose whether to keep section 4(1) (joint criminal liability) or section 4(2) (superior responsibility) or to keep both in the charge framing order, and they also enjoy the wide power to include the liability under any of the above-mentioned sections even though they are not in the charge framing order. Secondly, the prosecution's duty is to establish a crime beyond reasonable doubt. If there is any negligence or fault on the part of the prosecution then the crime will not be established beyond reasonable doubt and the accused will be acquitted. Did anything like that happen? Thirdly, according to section 20(1) and (2) of ICTA, the Tribunal must award death penalty once a crime is established beyond reasonable doubt. However, they may award other punishment proportionate to the gravity of the crime and for awarding other punishment considering gravity they must give specific reasons. Question is, did they? Finally, the act, in section 5(2) has also mentioned about the mitigating factors which may be taken into consideration by the judges if they want to reduce the punishment, which is that the accused acted pursuant to his domestic law or to order of his government or of a superior. Question is, was mitigating factor of section 5(2) used in the judgment? Our suggestion is before raising finger towards the integrity of the prosecution these few factors and questions need to be answered first. Nevertheless, it is always agreed that constructive criticism with complete knowledge about the law and procedure will always bring positive change.
In conclusion, in the last few weeks a lot of fresh and positive air has been brought into the arena of International Crimes Tribunal, by way of judicial notice, Shahbagh movement and criticisms. Hopefully, all this freshness and positivity will ensure justice to the victims of 1971 and fulfil the expectations of the new generation who gathered in the projonmo chottor.
1.Mamiya, Ralph, Taking Judicial Notice of Genocide? The problematic law and policy of the Karemera Decision, Wisconsin International Law Journal, volume 25, Number 1, Spring, 2007
2.The Daily Star, President signs amended ICT Law, 18 February, 2013.
3.Judgment of Chief Prosecutor v. Abdul Quader Mollah, delivered on 05 February, 2013.
4.Judgment of Chief Prosecutor v. Moulana Abul Kalam Azad, delivered on 21 January, 2013.
5.International Crimes Tribunal Act, 1973.
Barrister Tapas K. Baul is a prosecutor, International Crimes Tribunal, Bangladesh.
Barrister Fatima Jahangir Chowdhury is a volunteer researcher, International Crimes Tribunal, Bangladesh.