Written Application seeking review of charge framing order

This is a detailed note on the written application filed by the defence in support of its review of the Tribunal’s charge framing order. (A summary of the oral arguments made in court can be read here)

The application first summarised the arguments made in its original discharge application

That it was submitted in the discharge petition that the Formal Charge filed by the Prosecution was legally unfounded, factually misconceived, politically motivated and unsupported by any legal evidence, and that its background narrative was selective and distorted.

That it was argued in the discharge petition that the prosecution had failed to establish any nexus whatsoever between the petitioner and the alleged offences; no act of ordering, directing, inciting, aiding, or approving was identified.

That it was emphasised that during the relevant period the petitioner held no governmental office, no executive authority, and no operational capacity to influence police or administrative decisions, rendering the prosecution’s theory logically untenable.

That it was submitted that the investigation and prosecution in this case was fundamentally defective, rushed, and politically motivated. Not only the process lacked independence, it was also ridden with prosecutorial conflicts of interest, systemic deficiencies, and undue reliance on the fact finding report by the UN Office of the High Commissioner of Human Rights (OHCHR).

That it was further stated that investigators and the prosecutors failed to comply with international standards of forensic evidence, include and present key witnesses, preserve digital material, or collect exculpatory statements, making the investigation in this case procedurally and evidentially unreliable.

That it was argued that the 2024 amendments to the ICT Act were constitutionally problematic, adopted by an unelected administration, and had retroactive and inconsistent elements undermining both due process and legal certainty.

That it was submitted that the prosecution had not demonstrated the existence of any widespread or systematic attack as fundamentally required in a case involving crimes against humanity. The petitioner, in his discharge petition, provided evidence showing that the so-called July movement devolved into violent insurrection by militant elements, facts absent in the Formal Charge.

That it was argued that prosecution authorities demonstrated clear selectivity by ignoring crimes committed by groups later given blanket indemnity under the post-August regime, highlighting political instrumentalisation of the process.

That it was submitted that the audio recordings relied upon by the prosecution were exculpatory when taken in full, and lacked authentication, metadata, or chain of custody.

That it was stated that no digital evidence met the basic threshold of admissibility. No lawful interception order, certification, or forensic integrity was demonstrated by the Prosecution, contradicting international evidentiary standards.

That it was observed that key factual claims in the Formal Charge contained contradictions, including one victim whose documented date of death pre-dated the alleged event, demonstrating fundamental unreliability.

That it was submitted that the individual charges were unsupported by evidence: for instance – the “Mirror Now” interview showed no incitement, the alleged “shoot-at-sight” order following a meeting lacked any corroboration whatsoever, the alleged phone calls linked to protester deaths were unsubstantiated.

That it was argued that the prosecution relied on conjecture and political association, not evidence capable of proving individual criminal responsibility as required by the ICT Act.

That it was further submitted that the petitioner’s long public record demonstrated consistent advocacy for restraint, dialogue, and lawful conduct, wholly inconsistent with the prosecution’s allegations.

That it was ultimately submitted in the discharge petition that no prima facie case existed under any provision of the ICT Act, and that the Formal Charge should be rejected in its entirety.

It then made the following general comments on the  Tribunal’s Charge Framing Order

That the Hon’ble Tribunal in its impugned charge framing order asserted that the discharge stage requires only a minimal threshold and repeatedly stated that the defence objections “may be raised at trial”, thereby reframing the prima facie test as a procedural formality rather than a substantive evidentiary safeguard.

That the Hon’ble Tribunal briefly noted allegations of political motivation, but dismissed them without any analysis, asserting only that such matters require evidence and can be explored during trial, without engaging with the extensive supporting material provided.

That the Hon’ble Tribunal’s order maintained that investigative defects do not vitiate charge-framing, without addressing the specific failures raised, including lack of impartiality, non-compliance with standards of digital forensics, conflicts of interest, and non-compliance with international due process standards.

That the Hon’ble Tribunal acknowledged the audio evidence submitted by the prosecution but declined to evaluate completeness, authenticity, or chain of custody, stating generically that these issues pertain to weight, without addressing their selective presentation and flawed interpretation.

That the Hon’ble Tribunal simply restated the prosecution’s narrative without scrutiny, effectively adopting prosecution assertions as if they were established facts, and did not address the defence-evidence that directly contradicted that narrative.

That the Hon’ble Tribunal did not address the petitioner’s argument that he lacked authority, command responsibility, or any structural ability to influence State or non-State actors, thereby overlooking a central defence submission.

That the Hon’ble Tribunal did not engage with the evidence that the July–August events amounted to violent insurrection involving armed attacks, jailbreaks, killings, and militant infiltration, factors directly relevant to contextualising the allegations.

That the Hon’ble Tribunal failed to address the point that one side of an internecine political conflict received blanket indemnity, which demonstrates selective or politically driven prosecution. Such omission removed critical context from the Tribunal’s own assessment of evidence crucial to determination of innocence of the accused.

That the Hon’ble Tribunal did not mention the contradiction in the prosecution timeline, including the victim whose documented death preceded the alleged event, a defect that directly undermines factual plausibility.

That the Hon’ble Tribunal did not consider the constitutional and procedural objections relating to the 2024 amendments to the ICT Act, including concerns about retroactivity, legitimacy, and their effect on fair-trial guarantees.

That the Hon’ble Tribunal did not engage with exculpatory material provided by the petitioner showing he advised restraint, dialogue, and lawful conduct throughout the relevant period.

That the Hon’ble Tribunal, while addressing individual charges, provided only formulaic statements that ‘the prosecution materials prima facie disclose involvement’ without explaining what elements were met, which acts were attributable, or how contradictions were resolved.

That the Hon’ble Tribunal did not engage with submissions relating to mens rea, whereas the absence of a widespread or systematic attack, and the inapplicability of command responsibility, each were essential for establishing liability under the ICT Act.

That the Hon’ble Tribunal’s reasoning in its order was repetitive and non-analytical, relying heavily on the assertion that matters should be tested at trial, thereby avoiding its statutory duty to assess whether prosecution materials could support conviction.

That the Hon’ble Tribunal ultimately demonstrated a failure to apply judicial mind, a failure to consider relevant evidence, reliance on irrelevant considerations, and a misapplication of the prima facie standard, thereby providing strong grounds for review.

It then made the following specific criticisms of the Charge Framing Order

That it is respectfully submitted that the Tribunal’s order reveals a consistent pattern of deferral, in which nearly all defence objections were shifted to trial stage without analysis, effectively nullifying the purpose of the prima facie test.

That it is further submitted that the Tribunal materially failed to consider numerous central objections raised in the discharge petition, including lack of nexus, lack of authority, selective prosecution, factual contradictions, defective investigation, political vendetta and inadmissibility of evidence.

That it is submitted that the Tribunal adopted the prosecution’s narrative wholesale, without scrutiny, thereby demonstrating a failure to apply judicial mind and undermining the neutrality of the discharge assessment.

That it is submitted that the Tribunal did not address critical exculpatory evidence or legal submissions concerning constitutional defects, retroactivity, burden of proof, evidentiary reliability, the legal characterisation of the events, or even the well publicised political and personal stance of the accused in relation to the July events.

That it is submitted that these omissions constitute errors of law, procedural irregularities, and breaches of statutory duty, meeting the threshold for intervention through review.

It then set out various points made by the Defence in its original discharge application that it claimed the Tribunal had not respondeeed to in its Charge Framing order

• Inu and his party’s Stance on the Quota Movement.

Having quoted from the discharge application, this new application said that

“Failure to consider the position of the accused-petitioner on the Quota Movement and terrorist activities targeting the public properties and the private lives and properties has resulted into the violation of rule of law, natural justice and the principles of the Rome Statute read together with the case laws and guidelines of the ICC, and as such, the impugned order is liable to be rejected and subsequently, reversed in review.”

• Critique of the amendments to the ICT Act
  
  Having quoted from the discharge application, this new application stated:

“Failure to consider the aforesaid objections on the retrospective use of amendments has resulted into the violation of rule of law, natural justice and the principles of the Rome Statute read together with the case laws and guidelines of the ICC, and as such, the impugned order is liable to be set aside and subsequently, liable to be reversed in review.”

• Procedural and Institutional Defects

Having quoted from the discharge application, this new application  claimed that the ICT had failed:

“to consider the aforesaid objections on the Procedural and Institutional Defects, which are raised not only by the OHCHR reports, but also by Mr. Toby Cadman, learned Special Advisor to the Chief Prosecutor and Mr. Tajul Islam, learned Chief Prosecutor, has resulted into the violation of the provisions of the Constitution, rule of law, natural justice and the principles of the Rome Statute read together with the case laws and guidelines of the ICC, and as such, the impugned order is liable to be set aside and subsequently, liable to be reversed in review.”

• Failure to consider probative value of evidence

The application also criticised how the Tribunal had rejected the defence objections about the probative value of the evidence:

“That it is most respectfully submitted that the Hon’ble Tribunal has rejected the objections raised against the probative value of the evidence which were narrated from paragraph 107 to 242 stating in paragraph 80 of the impugned order that – “… At the stage of framing of charges, the Tribunal is not required to evaluate the probative value of evidence in depth. …”, which is in direct contrast to your statement provided in paragraph 4 of the impugned order, where it is stated that, “… In particular, the Tribunal draws interpretative guidance from the Rome Statute of the International Criminal Court, ratified by Bangladesh on 23 March 2010. …”, since Article 67(4) and 67(7) of the Rome Statute guarantees the right of the accused persons to challenge the probative value of the evidence at the pre-trial stage during the confirmation of the charges [Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali (Decision on the Confirmation of Charges) ICC-01/09-02/11 (ICC, Pre-Trial Chamber II, 23 January 2012) and failure to consider the aforesaid objections on the lack of probative value of the evidence produced by the prosecution has resulted into the violation of the provisions of the Constitution, rule of law, natural justice and the principles of the Rome Statute read together with the case laws and guidelines of the ICC, and as such, the impugned order is liable to be set aside and subsequently, liable to be reversed in review.

That it is most respectfully submitted that International criminal procedure recognizes that the confirmation of charges is not a mere formality but a substantive safeguard against unfounded prosecution cases, specially in a case like the present one where there is not substantial ground to reasonably believe that the accused-petitioner has committed the alleged crimes due to lack of sufficient and unbiased evidence. Under Articles 61, 67(4) and 67(7) of the Rome Statute, the accused has the right to challenge the evidence presented by the Prosecutor and contest its probative value, particularly on the ground of insufficiency. This principle was affirmed in cases such as Prosecutor v. Bahar Idriss Abu Garda (ICC-02/05-02/09), where the Pre-Trial Chamber declined to confirm charges due to lack of substantial grounds to believe the accused committed the alleged crimes. Similarly, in Prosecutor v. Callixte Mbarushimana (ICC-01/04-01/10), the Chamber emphasized that the Prosecutor must present evidence capable of sustaining a conviction if unchallenged, and failure to do so warrants dismissal. Academic commentary, including the War Crimes Research Office report on ICC confirmation hearings, underscores that this adversarial process is essential to uphold fairness and prevent arbitrary indictments. By allowing the accused to contest the sufficiency and reliability of evidence at this stage, the ICC ensures compliance with the principles of natural justice, rule of law, and the right to a fair trial enshrined in Article 67 of the Rome Statute, and as such, the impugned order is liable to be set aside and subsequently, liable to be reversed in review.

That it is further submitted that the jurisprudence of the International Criminal Court underscores that the confirmation of charges is a critical procedural safeguard, ensuring that prosecutions proceed only on a solid evidentiary foundation. In its Decision on the Confirmation of Charges in Prosecutor v. Callixte Mbarushimana (ICC-01/04-01/10, 16 December 2011), the Pre-Trial Chamber held that the Prosecutor must present evidence capable of establishing “substantial grounds to believe” the accused committed the alleged crimes, and that the defense has the right to challenge the probative value and sufficiency of such evidence. The Chamber declined to confirm charges against Mbarushimana, finding that the evidence failed to demonstrate his contribution to the alleged criminal acts. This decision, along with similar rulings in Prosecutor v. Bahar Idriss Abu Garda and Prosecutor v. Hussein Ali, affirms that the right to contest evidentiary sufficiency at the pre-trial stage is integral to the principles of natural justice, rule of law, and the fair trial guarantees enshrined in Article 67 of the Rome Statute. By contrast, the failure of the ICTBD to consider written submissions challenging prosecutorial bias and constitutional flaws at the charge framing stage represents a departure from these internationally recognized standards, and as such, the impugned order is liable to be set aside and subsequently, liable to be reversed in review.

That it is further submitted that the Hon’ble Tribunal’s presumption of a “widespread and systematic attack” [paragraph 80 and 81 of the impugned order] during the Quota Movement and subsequent uprising, at the charge framing stage, without evidentiary scrutiny, violates the principles of rule of law and natural justice, and departs from international standards under the Rome Statute. Article 61(7) of the Rome Statute mandates that the Pre-Trial Chamber confirm charges only if there is sufficient evidence to establish “substantial grounds to believe” the accused committed the alleged crimes. The contextual elements of crimes against humanity—namely, a “widespread or systematic attack directed against any civilian population” under Article 7(1)—must be proven, not presumed. ICC jurisprudence, including Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali (Decision on the Confirmation of Charges, ICC-01/09-02/11, 23 January 2012), and Prosecutor v Callixte Mbarushimana (ICC-01/04-01/10, 16 December 2011), affirms that failure to establish these contextual elements results in non-confirmation of charges. By contrast, the Tribunal’s approach of assuming these elements without analysis undermines the accused’s right to challenge the evidence and contradicts Article 67(1) of the Rome Statute, which guarantees a fair and impartial hearing. Such presumptions erode judicial neutrality and compromise the integrity of proceedings, amounting to a fundamental breach of international due process standards, and as such, the impugned order is liable to be set aside and subsequently, liable to be reversed in review.

That it is most respectfully submitted that The Tribunal’s assertion in paragraph 83 that the accused “had knowledge” of the alleged criminal plan prior to trial, without evidentiary adjudication, is a fundamental breach of the rule of law, natural justice, and international fair trial standards. Under Article 61(7) of the Rome Statute, the Pre-Trial Chamber must confirm charges only if there is sufficient evidence to establish “substantial grounds to believe” the accused committed the crimes. Knowledge (mens rea) is a core element of crimes against humanity under Article 7(1) and must be proven through credible evidence, not presumed. ICC jurisprudence—such as Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali (ICC-01/09-02/11, 23 January 2012) and Prosecutor v Callixte Mbarushimana (ICC-01/04-01/10, 16 December 2011; also see the Appeal Judgment: ICC-01/04-01/10 OA 4, dated 30 May 2012)—confirms that failure to establish mental elements leads to non-confirmation of charges. Presuming knowledge at the charge framing stage effectively shifts the burden of proof to the accused, undermining Article 67(1)(i) of the Rome Statute, which guarantees the presumption of innocence and the right to challenge evidence. Such judicial presumptions without trial compromise impartiality and create a “foregone conclusion,” eroding the integrity of proceedings and exposing the accused to irreparable prejudice, and as such, the impugned order is liable to be set aside and subsequently, liable to be reversed in review.

That it is further submitted that the Hon’ble Tribunal’s assumption that the accused held a “position of political authority capable of influencing or directing those who perpetrated the crimes” (84) is legally unsustainable and contrary to the principles of rule of law and international criminal jurisprudence. Under Article 28 of the Rome Statute, superior responsibility—whether military or civilian—requires proof of (i) a superior-subordinate relationship involving effective control, (ii) the superior’s knowledge or reason to know of the crimes, and (iii) failure to prevent or punish the perpetrators. ICC case law, including Prosecutor v Jean-Pierre Bemba Gombo (Judgment, ICC-01/05-01/08, 21 March 2016), emphasizes that “effective control” is the material ability to prevent or repress crimes, not mere political influence or association. Similarly, in Prosecutor v Delalić et al. (ICTY, 1998), the Tribunal held that command responsibility cannot be inferred from status alone; it must be established through evidence of actual authority and control over subordinates. In the present case, the accused was neither a minister nor a member of parliament, but merely a member of a political alliance with no operational control over state forces. Presuming superior responsibility without proof of these elements not only violates Article 66(1) of the Rome Statute (presumption of innocence) but also undermines the evidentiary standards required at the pre-trial stage under Article 61(7). Such presumptions risk transforming judicial proceedings into political instruments, eroding fairness and impartiality guaranteed under Article 67(1) of the Rome Statute, and as such, the impugned order is liable to be set aside and subsequently, liable to be reversed in review.

The Tribunal’s approach in paragraph 85, which presumes the accused’s guilt at the charge framing stage, violates the fundamental principle that the prosecution bears the burden of proof throughout the proceedings. Under Article 66(1) of the Rome Statute, “[e]veryone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law,” and Article 66(2) explicitly places the burden of proof on the Prosecutor to establish guilt beyond reasonable doubt. Similarly, Article 14(2) of the ICCPR guarantees that “[e]veryone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.” This principle is echoed in customary international law and reaffirmed in cases such as Prosecutor v Lubanga (ICC-01/04-01/06) and Prosecutor v Bemba (ICC-01/05-01/08), where the ICC stressed that any presumption of guilt or reversal of the burden of proof undermines fair trial rights under Article 67(1) of the Rome Statute. By presuming guilt and requiring the defense to rebut this presumption before trial, the Tribunal has departed from universally recognized standards of due process, eroding judicial impartiality and compromising the integrity of the proceeding, and as such, the impugned order is liable to be set aside and subsequently, liable to be reversed in review.