case in brief:

1. According to the Prosecution, Mr. Motiur Rahman Nizami (hereinafter Mr. Nizami) was the Chief of the Al-Badr, an auxiliary para-military force of the Pakistan Army, which is alleged to have committed atrocities in 1971. In particular, Al-Badr is alleged to be responsible for the killing of intellectuals in December 1971. The Prosecution alleges that as Chief of Al-Badr, Mr. Nizami was responsible in his capacity as a ‘superior’ for the atrocities committed by that force under section 4(2) of ICT Act 1973.
2. The Prosecution also alleges that Mr. Nizami through his speeches incited the commission of crimes against humanity and genocide by the Pakistan Army in 1971 and that Mr. Nizami in his alleged capacity as Al-Badr Chief, conspired with the Pakistan Army and its collaborators to murder intellectuals in 1971.
3. Furthermore, the Prosecution alleges that most of the atrocities were committed in Pabna in 1971 on the instigation of Mr. Nizami and further that Mr. Nizami, together with Pakistan Army and its collaborators, physically participated in the killings of many civilians in Pabna rural area.

 

Defence Case in relation to Al-Badr:

1. In order to establish the allegation regarding Mr. Nizami’s involvement with Al-Badr, the Prosecution exhibited various newspaper reports, Police Fortnightly Reports on political situation in 1971, as many as 9 books and Identity cards of Al-Badr members. However, according to the documents exhibited by the Prosecution, it is evident that Mr. Nizami was in no manner involved with the Al-Badr Force. The Prosecution Exhibits provide contradictory information regarding the formation and leadership of Al-Badr, thereby rendering the entire Prosecution case doubtful.  Thus, according to Exhibit-28/2, page 127, the Al-Badr is said to have been founded by Major Riaz Hossain Malik, whereas according to the Formal Charge, Paragraph 27, Al-Badr was formed by Ashraf Hussain in Jamalpur. Further contradictory evidence is found in the Prosecution Exhibit 35, Para 81-82 according to which Al-Badr was raised in Mirpur under the leadership and supervision of Pir of Sarsina. The Prosecution Exhibits also contain contradictory information regarding the leadership structure of Al-Badr. According to Exhibit-28/2, page 128, the first commander of Al-Badr was one Kamran whereas according to a newspaper report published in 1971 exhibited by the Prosecution (and admitted by the IO during cross examination, page 15, paragraph-6), one Al-Mujahidi was the Chief of Al-Badr. Thus the Prosecution Exhibits completely fail to establish that Mr. Nizami was a leader of the Al-Badr Force.
2. The Prosecution exhibited as many as 22 newspaper reports of 1971 which contain the name of Mr. Nizami but in none of these reports has Mr. Nizami been identified as a leader or Chief or Commander of Al-Badr. Further, the Prosecution exhibited 31 newspaper reports on Al-Badr published before 16th December 1971 and 35 newspaper reports on Al-Badr published after 16th December 1971. None of these reports allege any nexus – directly or indirectly – between Mr. Nizami and the Al-Badr force. On the contrary, according to a news report exhibited by the Prosecution (the Daily Azad dated 11.12.1971), a person other than Mr. Nizami has been identified as Al Badr Chief. Thus, it is evident from a careful consideration of the Prosecution Exhibits that Mr. Nizami had no nexus whatsoever with the Al-Badr Force.
3. Furthermore, the Prosecution has exhibited Fortnightly Police reports on the political activities in 1971. The said Fortnightly reports contain details of the activities of Mr. Nizami during 1971. The said Fortnightly reports also provide details of the meetings and activities of Al-Badr. However, in none of these reports has Mr. Nizami been identified as being in any manner associated or involved in any capacity with the Al-Badr Force.  In fact, the said Fortnightly Police Reports identify Mr. Nizami as President of Islami Chhatra Sangha (ICS). Had Mr. Nizami been the leader or Chief or Commander of Al-Badr, the Fortnightly Police Reports would have identified him with reference to his alleged designation/position within that organization. As such, it is clear from the Fortnightly Police Reports that Mr. Nizami had no nexus with the Al-Badr force.

1. Moreover, during cross examination, the IO admitted that Mr. Nizami was a civilian throughout the entire duration of the war in 1971. If indeed Mr. Nizami was a civilian during1971 as admitted by the IO, then it is inconceivable that he would be the leader or Chief of a para-military force such as the Al-Badr force. It is a settled principle of law laid down by international criminal tribunals that a person cannot be a civilian by day and a combatant by night (See Paragraph 114-115, Prosecutor vs Timohir Blaskic).

1. The prosecution also exhibited several identity cards of Al-Badr members. None of the Identity Cards were issued by Mr. Nizami, but were issued by someone else. As such, the said identity cards of the Al-Badr members, as exhibited by the Prosecution, also fail to establish any nexus between Mr. Nizami and the Al-Badr Force.
2. Moreover, the Defence exhibited a list of Al-Badr members prepared by the Home ministry of Bangladesh in 1972. The said official list was submitted by the Prosecution in various other pending cases before the International Crimes Tribunal, Dhaka. The list was prepared by the local Police and civil administration in 1972 and sent to the Secretary of Ministry of Home Affairs. It will be seen from the said list that it does not contain the name of Mr. Nizami. As such, official documents relied upon the Prosecution clearly establish absence of any nexus between Mr. Nizami and the Al-Badr Force.
3. It is also pointed that until 1986, no books or newspapers contained any reference to Mr. Nizami as being associated with the Al-Badr force in any manner. Nor was there any reference in the said materials to indicate that Mr. Nizami had committed any atrocities in 1971. This has also been confirmed by the IO during the course of cross examination. It was only after Mr. Nizami participated in the 1986 General Elections and obtained a large number of votes, did his political opponents begin to engage in propaganda against Mr. Nizami.
4. Upon the liberation of Bangladesh on 16th December 1971, a large number of cases was filed in respect of offences committed in 1971. On the killing of intellectuals alone, more than 42 cases were filed, which is evident from the documents exhibited by the prosecution. However, no case was filed against Mr. Nizami alleging his involvement with any offence in 1971. Until 2008, no case was filed against Mr. Nizami in respect of war time atrocities in 1971. Mr. Nizami has been living in Bangladesh since 1971, participated in politics, was a member of the government as well as of the opposition, won as well as lost elections. Since 1986, Mr. Nizami had been under the spotlight of the media. However, the prosecution failed to explain why it took them 37 years to file a case against Mr. Nizami and why the ruling party could not prosecute him immediately after 1971 or even in 1996-2001, when it was in power. 

Defence case in respect of allegations as to atrocities committed in Pabna:

1. Mr. Nizami was a prominent student leader in 1971. He was the president of all Pakistan Islami Chatra Shangha (Jamiyate Talaba). His activities in 1971 were reported in the print media and in the fortnightly police reports. The Prosecution has failed to establish the allegation that Mr. Nizami physically participated in the atrocities in Pabna inasmuch as there is no newspaper or Police report that Mr. Nizami visited Pabna in 1971. 
2. Furthermore, the depositions of the Prosecution witnesses are full of contradictions. All the Prosecution witnesses admitted that they are associated with the ruling party, Awami League and most of them receive benefit from the government, thus rendering their deposition unreliable.
3.  Moreover, as many as 5 listed Prosecution Witnesses admitted in a video recording that they were compelled, offered bribes and in some cases tortured to give false testimony against Mr. Nizami. The video recordings have been exhibited by the Defence as Material Exhibits.

Defence case regarding allegations of incitement and hate speech:

1.  The authenticity and accuracy of the alleged speeches of Mr. Nizami (which are the subject matter of Charges 11-14) are highly doubtful. Thus, for instance, according to the newspaper report (Exhibit- 2/5), the date of delivery of the speech of Mr. Nizami in Charge 11 is 2nd of August 1971 and the place at which the speech was allegedly delivered was Chittagong district. However, according to the charge framing order, the speech was alleged to have been delivered by Mr. Nizami on 3rd of August 1971. No news report has been exhibited by the Prosecution to show that Mr. Nizami delivered any speech on 3rd of August 1971. Furthermore, during cross examination, the IO admitted that according to another news report, Mr. Nizami was in another place on that day, i.e., 2nd August 1971 (See cross examination of IO, page 17, paragraph 3, line 3).  It is also pointed that according to Prosecution and Defence Exhibits there was strict press censorship in 1971 thereby raising serious doubts as to the authenticity and reliability of the news reports.
2. Assuming that the Prosecution has established beyond reasonable doubt that the Accused in fact made the statements (which form the subject matter of Charges 11-14), the Defence submits that taking such statements to be true, they do not constitute the offence of incitement to commit genocide under customary international law.
3. According to Charge 11, by a speech delivered at the Muslim Institute of Chittagong, Mr. Nizami stated that it is necessary to save Pakistan to save Muslims, that Pakistan is the house of Allah and that Allah had repeatedly protected Pakistan and that that no earthly power can destroy Pakistan. In the said speech, Mr. Nizami is allegedly to have stated that Allah had protected Pakistan through the Pakistan Army.  According to Charge 12 , by a speech delivered on 22^nd August 1971, Mr. Nizami stated that the history of Islam was not about martyrdom only, it was also about destroying enemies. He also stated that only by taking vengeance for the killing of Al-Madani would it be able to pay respect to Al-Madani. According to Charge 13, Mr. Nizami delivered a speech on 8^th September 1971 in the Arts Building premises where he stated that ICS members were committed to protecting every single inch of Pakistan and that they were even prepared to attack India for the sake of protecting Pakistan. At the event, the ICS members also took oath to destroy India and its collaborators.” According to Charge 14, Mr. Nizami delivered a speech at the Jessore district Razakar Head Quarters where he interpreted Verses 111 and 112 of Surah Tawbah of the Quran.
4. By making the above speeches, Mr. Nizami can in no way be said to have instigated, prompted or provoked the destruction of any particular racial, religious, national or ethnic group. The Prosecution has not brought any evidence on record to show that Mr. Nizami has instigated, prompted or provoked the perpetrator of any crimes to commit any offence against members of any of the aforesaid groups. In fact, there is nothing in those statements, which can even remotely be termed as a ‘call for criminal action’. Furthermore, no evidence has been brought on record to establish that Mr. Nizami had the intention to destroy Hindus, or members of the Awami League or the Bengali population or that he intended to create by his statements a particular state of mind amongst members of the audience necessary to commit the crime of genocide. Therefore, the Prosecution has failed to prove that Mr. Nizami has committed the offence of incitement to commit genocide.

Arbitrary arrest and detention of Mr. Nizami:

1. The arrest of Mr. Nizami and the subsequent trial process was arbitrary and illegal from the beginning to the end. On 23rd November 2011, the United Nations Working Group on Arbitrary Detention expressed its opinion that the detention of Mr Nizami under the ICT Act 1973 war arbitrary and illegal. The UN Working Group found “significant restrictions” on the defendant’s (detainee’s) access to legal assistance and their “unimpeded access to evidence”. It is pointed out that the Tribunal amended its own Rules of Procedure and gave retrospective effect to the said provisions in order to legitimise Mr. Nizami’s detention order.

Skype Scandal and Charge relating to killing of intellectuals:

1. Perhaps the biggest scandal in the history of the Bangladesh judiciary, namely the Skype Scandal revealed the fact that charges were framed against Mr. Nizami by the Tribunal in active collaboration with a Brussels based international legal expert, Dr. Ahmed Ziauddin. The Skype conversations show that Mr. Nizami was charged with the killing of intellecutals (Charge No. 16) at the dictate of Dr. Ahmed Ziaudin. The said charge relating to killing of intellectuals was framed against Mr. Nizami although the said allegation had not been made by the Prosecution in the Formal Charge. Nor were any arguments made in respect of the charge of intellectual killing at the time of charge hearing. The said charge was inserted in the Charge Framing Order on the instructions of Dr. Ahmed Ziauddin. The emails exchanged between the former Chairman of the Tribunal, Mr. Justice Nizamul Huq and Dr. Ahmed Ziauddin show that the entire charge framing order was emailed by Dr. Ziauddin to the former Chairman of the Tribunal on 27th May, 2012. On 28^th May 2012, the then Chairman of the tribunal Mr. Justice Nizamul Huq read out the charge framing order which was emailed to him by Dr. Ziauddin the day be. Furthermore, in order to substantiate Charge 16, the IO illegally continued his investigation even after submission of the Investigation Report to the Chief Prosecutor. The said illegal investigation continued even during the course of the trial. Lists of new witnesses and additional documentary evidence was submitted by the Prosecution even a few days before the the case was closed.

Right to a fair trial infringed:

1. The Defence has argued that the right of Mr. Nizami to defend his case has been substantially curtailed by the Tribunal. Although, the Prosecution was given 22 months for investigation, the Defence was given a mere 3 weeks for their preparation. Further, the Prosecution was allowed to submit a list of 104 witnesses. Initially, the Prosecution submitted a list of 65 witnesses followed by list of 6 witnesses, another list of 28 witnesses and finally a list of 5 additional witnesses. Moreover, the tribunal did not limit the number of the witnesses to be adduced by the Prosecution and accordingly, the Prosecution produced 26 witnesses. However, the Tribunal restricted the number of witnesses to be produced by the Defence to only four. It is also pointed out that the Prosecution took 14 months to adduce PWs, however the Defence was given only 13 days to produce their witnesses.
2. Further, the Prosecution exhibited as many as 260 documents. However, the tribunal did not allow the Defence to cross examine the IO in respect of the said documents.

Fabricated testimony of Prosecution Witnesses:

1. One of the Prosecution witnesses, namely Advocate Mr. Shamsul Haq Nannu, in a secretly filmed video claimed that the Prime Minister, DGFI, State minister of Home Affairs, forced him to testify against Mr. Nizami. He also claimed that he will be paid 14 crore (140 million) Taka loan if he testifies against Mr. Nizami. The video recording was made on 31st May and 10th July 2012 before his deposition before the tribunal on 20th June 2013. However, after the video recording became available in the internet on 18th September 2013, Mr. Nannu in a press conference, held in the prosecution office on 21st September 2013, categorically denied that he was the person in the video recordings. In such circumstances, the Defence filed an application before the tribunal praying for re calling Mr. Nannu so that he could be further cross examined in order to assertion the authenticity of the alleged video. The Defence annexed with that application the photocopy of Mr. Nannu’s passport, his Voter ID card (containing his photo) and his photograph as was published in the Supreme Court Bar Association Members’ Directory. However, the tribunal most unreasonably rejected the application with the observation that,

“It is apparently found from the application that P.W. 11 allegedly has made contradictory statement before different media and as such those subsequent statements are not fit for taking cognizance of it. Accordingly, the prayer for recalling P.W. 11 Shamsul Huq Nannu is rejected.”

 

1. Subsequently the video recording of Mr. Nannu’s press conference in the prosecution office and the secret video recording were sent to a Forensic Expert, Captain John P. Slater (Ret.), for forensic voice analysis. According to the Report of the Forensic Report, Mr. Nannu’s voice matches the voice of the person in the secretly filmed recordings.

 

1. Thereafter, the Defence submitted 2 applications, one for review the order refusing to recall Mr. Nannu for recross examination and the other for allowing Captain John P. Slater to give expert evidence as Defence Witness before the tribunal. The tribunal most unreasonably rejected both applications.