Golam Azam : summary of defence case

SUMMARY OF CHARGES 1, 2, 3 AND 4

1. CONSPIRACY

1. There are 6 counts of conspiracy against the Accused. Conspiracy to commit crimes under section 3(2) of the 1973 Act is punishable under section 3(2)(g) of the said Act.

2. In order to prove the offence of conspiracy to commit genocide, the Prosecution is required to establish the following beyond reasonable doubt:

ACTUS REUS:

(i)                  Existence of an agreement between the Accused and one or more persons to commit the crime of genocide (Actus Reus) (Para 894, Nahimana (Appeals Chamber)).

(ii)                Agreement may be proved by direct evidence. Agreement may also be inferred from circumstantial evidence. Concerted or coordinated action on the part of the conspirators can constitute evidence of an agreement. However, where existence of an agreement is to be proved from circumstantial evidence, the existence of a conspiracy to commit genocide must be the only reasonable inference based on the totality of the evidence (Paras 896, 897, Nahimana (Appeals Chamber)).

(iii)               Since conspiracy to commit genocide is an inchoate offence, it is not necessary to prove that genocide occurred pursuant to the conspiracy.

MENS REA:

(iv)              The Accused had the intent to destroy in whole or in part a national, ethnical, racial, religious or political group, which is also known as the genocidal intent (Mens Rea) (Para 894, Nahimana (Appeals Chamber)).

(v)                It is difficult to find explicit manifestations of genocidal intent. In most cases, genocidal intent will be proved by circumstantial evidence (Para 93, Kayishema (Trial Chamber). In such cases, it is necessary that the finding that the accused had the genocidal intent be the only reasonable inference from the totality of the evidence (Para 524, Nahimana (Appeals Chamber))

(vi)              Genocidal intent presupposes that victims are chosen by reason of the membership in the group whose destruction is sought (Para 561, Radislav Krstic (Trial Chamber)).

3. It is the Defence case that the Prosecution has failed to produce any evidence on record to establish that any agreement was reached between the Accused and any other person to commit any crimes under section 3(2) of the Act. As such, the Actus Reus of the offence of conspiracy has not been established beyond reasonable doubt.

4. Furthermore, no evidence has been brought on record by the Prosecution to show that the Accused had the intent to destroy in whole or in part a national, ethnic, racial, religious or political group. There is no evidence on record on the basis of which such genocidal intent may be inferred. Also, the Prosecution has not even attempted to establish that the alleged targets of the conspiracy were chosen by reason of the membership in the group whose destruction was sought.

2. PLANNING

1. There are 3 counts of Planning against the Accused.

2. Planning is not an offence under section 3(2) of the Act. However, under section 4(2), a ‘superior officer’ or ‘commander’ who is connected with any plans and activities involving the commission of crimes under section 3(2) of the Act is guilty of such crimes. 

3. There is no allegation in the Formal Charge or the Charge Framing Order that the Accused was a ‘superior officer’ or ‘commander’ in 1971. Further, no Prosecution Witness has made any statement identifying the Accused as a ‘superior officer’ or ‘commander’. As such, no question arises of attracting liability under section 4(2) of the Act.

4. The Prosecution has alleged that Planning is a crime under international law and as such punishable under section 3(2)(f) of the 1973 Act. However, there is no evidence to show that Planning commission of Genocide is a crime under international law. The Genocide Convention makes no reference to the offence of planning commission of genocide. It is pointed out however that Planning the commission of Crimes against Humanity was punishable under the Nuremberg Charter.

5. Under the ICTY and ICTR Statutes, Planning the commission of genocide or Crimes Against Humanity is an offence.

6. Under the ICTY and ICTR Statutes, in order to prove the offence of Planning, the Prosecution has to establish the following beyond reasonable doubt:

ACTUS REUS:

(i)                  That one or more persons designed the criminal conduct constituting one or more statutory crimes that are later perpetrated. It is sufficient to demonstrate that the planning was a factor substantially contributing to such criminal conduct (Para 479, Nahimana (Appeals Chamber).

(ii)                Planning presupposes that one or more persons contemplate the commission of a crime at both its preparatory and execution phases (Para 271, Gacumbitsi (Trial Chamber). The level of participation in planning must be substantial, such as actually formulating a plan or endorsing a plan proposed by another person (Para 761, Kajelijeli (Trial Chamber).

MENS REA:

(iii)               The mens rea for this mode of responsibility entails the intent to plan the commission of a crime, or at a minimum, the awareness of substantial likelihood (Para 479, Nahimana (Appeals Chamber).

7. Planning is not an inchoate offence.

8. It is the Defence case that no evidence has been brought on record by the Prosecution to establish that the Accused designed the criminal conduct constituting a crime under section 3(2) of the Act that was later perpetrated. There is no evidence show that the Accused contemplated the commission of a specific crime at both its preparatory and execution phases and that the level of his participation was substantial. Further, the Prosecution has failed to identify a specific offence or incident of atrocities which was perpetrated pursuant to any plans of the Accused. No evidence has been brought on record to show that the Accused’s conduct substantially contributed to the commission of a specific offence punishable under section 3(2) of the Act. As such, the Prosecution has failed to prove the Actus Reus of the offence of Planning.

9. The Prosecution has also not proved that the Accused had the intent to plan the commission of a specific crime.

3. INCITEMENT

1. There are 28 counts of Incitement against the Accused.

2. Incitement is not an offence which has been specifically mentioned in section 3(2) of the 1973 Act. However, ‘Direct and Public Incitement to commit genocide’ is punishable under Article 3(c) of the Genocide Convention (which is reflective of customary international law) and as such, the same is a crime under international law punishable under section 3(2)(f) of the Act. Therefore in order to determine the elements of crime of ‘Direct and Public Incitement to commit Genocide’, it is necessary to refer to Article 2 of the Genocide Convention.

3. According to Article 2 of the Genocide Convention, genocide may be committed of 4 groups – (i) national group, (ii) ethnical group, (iii) racial group and (iv) religious group.

4. Incitement to commit Genocide is an inchoate offence. Therefore it is not necessary to prove that genocide has occurred in order to prove the offence of incitement to commit genocide (Para 678, Nahimana (Appeals Chamber)).

5. There is no evidence to show that ‘Incitement to commit Crimes Against Humanity’ is a crime under international law punishable under section 3(2)(f) of the Act.

6. In order to prove the offence of ‘Direct and Public Incitement to commit Genocide’, the Prosecutor has to establish the following beyond reasonable doubt:

ACTUS REUS:

(i)                  The ‘public’ element of the offence requires there to be a call for criminal action to a number of individuals in a public place or members of the general public against members of any of the 4 protected groups under the Genocide Convention (Para 851, Kajelijeli (Trial Chamber)).

(ii)                The ‘direct’ element of the offence requires specifically urging another individual to take immediate criminal action (Para 852, Kajelijeli (Trial Chamber). The direct element requires one to specifically provoke another to engage in a criminal act. More than mere vague or indirect suggestion is required (Para 557, Akayesu (Trial Chamber)).

(iii)               Implicit language may however be direct. Therefore, the Court has to consider the cultural and linguistic content of the speech (Para 557, Akayesu (Trial Chamber). The Court has to consider the whether in light of the culture of the country and the specific circumstances of the case, the persons for whom the message was intended immediately grasped the implication thereof (Para 558, Akayesu (Trial Chamber)).

MENS REA:

(iv)              The mens rea required for the crime of direct and public incitement to commit genocide is the intent to directly prompt or provoke another to commit genocide (Para 560, Akayesu (Trial Chamber)).

(v)                The person who is inciting to commit genocide must have himself the genocidal intent, i.e., the specific intent to destroy in whole or in part, a national, ethnical, racial or religious group (Para 560, Akayesu (Trial Chamber)).

(iv)              It is difficult to find explicit manifestations of genocidal intent. In most cases, genocidal intent will be proved by circumstantial evidence (Para 93, Kayishema (Trial Chamber). In such cases, it is necessary that the finding that the accused had the genocidal intent be the only reasonable inference from the totality of the evidence (Para 524, Nahimana (Appeals Chamber))

(vi)              Genocidal intent presupposes that victims are chosen by reason of the membership in the group whose destruction in sought (Para 561, Radislav Krstic (Trial Chamber)).

7. It is the Defence case that the Prosecution has failed to produce any evidence to show that the statements and speeches of the Accused were targeted against members of any ‘national’, ‘ethnic’, ‘racial’ or ‘religious’ group. The Defence relies on paragraphs 512-516 of the Akayesu trial judgment for definitions of what constitutes a ‘national’, ‘ethnic’, ‘racial’ or ‘religious’ group. The Defence has referred to Prosecution Exhibits, including Fortnightly Reports, to show that the terms ‘miscreants’, ‘rebels’, ‘separatists’, ‘enemies’, ‘anti-state elements’ and ‘infiltrators/intruders’ were used in 1971 to refer to armed Freedom fighters engaged in liberation struggle/armed insurgents who had crossed the border to assist in the armed struggle for liberation. The Defence has argued that there is no scope for armed freedom fighters or armed insurgents to fall into one of the 4 protected groups under the Genocide Convention. As such, the Accused’s statements/speeches targeting ‘miscreants’, ‘rebels’, ‘separatists’, ‘enemies’, ‘anti-state elements’ and ‘infiltrators/intruders’ does not amount to incitement to commit genocide of any of the protected groups under the Genocide the Convention. Therefore the Prosecution has failed to prove the Actus Reus of the offence of incitement to commit genocide.

8. Furthermore, no evidence has been brought on record by the Prosecution to show that the Accused had the intent to destroy in whole or in part a national, ethnic, racial or religious. There is no evidence on record on the basis of which such genocidal intent may be inferred. The Prosecution has failed to show that the Accused in his statements/speeches targeted members of an ethnic group on account of their ethnicity or members of a religious group on account of their religious beliefs.

4. COMPLICITY

1. There are 23 counts of complicity against the Accused Petitioner.

2. Complicity in the commission of Genocide/Crimes Against Humanity is an offence under section 3(2)(h) of the 1973 Act.

3. In order to prove the offence of Complicity in the commission of crimes under section 3(2) of the Act, the Prosecution is required to establish the following beyond reasonable doubt:

ACTUS REUS:

(i)                  That the Accused provided assistance or encouragement that substantially contributed to or have had a substantial effect on the completion of the crime (Para 395, Semanza (Trial Chamber)).

MENS REA:

(ii)                That the Accused must have acted intentionally with the awareness that he was contributing to the crime of genocide, including all its material elements (Para 395, Semanza (Trial Chamber)).

4. Complicity is not an inchoate offence.

5. It is the Defence case that no evidence has been brought on record by the Prosecution to establish that the Accused provided assistance or encouragement to the perpetrators of a specific offence that substantially contributed to or had a substantial impact on the commission of an offence punishable under section 3(2) of the Act. The Prosecution has failed to identify a specific offence or incident of atrocities which was perpetrated pursuant to any actions of the Accused. No evidence has been brought on record to show that the Accused’s conduct/action substantially contributed to the commission of a specific offence punishable under section 3(2) of the Act. As such, the Prosecution has failed to prove the Actus Reus of the offence of Complicity.

6. The Prosecution has also not proved that the Accused acted intentionally with the awareness that he was contributing to the crime of genocide, including all its material elements.