Qamrul Islam written discharge application, part 5
This is the fifth part of the written discharge application that concerns the defence rebuttals in relation to the charges against Qamrul Islam
SPECIFIC REBUTTALS TO THE CHARGES
Charge No.1: Alleged meeting dated 19th July, 2024
50. That the Prosecution alleges that on 19 July 2024, the accused-petitioner participated in a meeting held at Gonobhaban, the official residence of the then Prime Minister Sheikh Hasina, attended by members of the 14-Party Alliance. It is alleged that, in that meeting, a decision was taken to impose a nationwide curfew, apply the “highest possible force” against protesters, and implement the alleged “shoot-at-sight” policy. It is further alleged that, by virtue of being present in that meeting, the accused-petitioner became criminally liable for “murder”, “attempt to murder”, “torture”, “other inhuman act”, “abetment”, “incitement”, “complicity” and “conspiracy” in crimes against humanity under sections 3(2)(a), (g), and (h) of the International Crimes (Tribunals) Act, 1973, and that his presence attracted superior responsibility under section 4(1)–(3) of the same Act.
51. That it is submitted that the allegation rests on speculative assumptions. The Prosecution has not produced any minutes, recordings, or corroborating testimony confirming that any such decision to impose a “shoot-at-sight” policy was made or discussed or adopted at the meeting of 19th July 2024. No document, communication, or witness statement has been disclosed that connects the accused-petitioner to any such decision.
52. That it is submitted that the alleged meeting of 19 July 2024 was a political coordination meeting of the 14-Party Alliance — a broad coalition comprising multiple political parties with differing levels of influence and responsibility. The accused-petitioner, as Presidium Member of Bangladesh Awami League, attended the meeting merely as a stakeholder and had no executive power, control, or decision-making authority within the Government. Accordingly, he could not have taken part in, or consented to, any governmental directive, to use “Lethal Weapon” or “shoot-at-sight” order.
Alleged “shoot at sight” order
53. That it is further noted that the sole piece of material relied upon by the Prosecution is a media statement attributed to Mr Obaidul Quader, General Secretary of the Bangladesh Awami League, wherein he expressed his personal position on “shoot at sight”. It is undisputed that this was a statement absolutely of Mr Quader himself and not of the meeting, nor is there any material to suggest that he spoke on behalf of all those present, including the accused-petitioner, because he was not the spoke person of the said meeting. The Prosecution has not produced any material showing that Mr Quader’s comment reflected the collective decision of the meeting or even the formal stance of the Awami League. Rather it is clearly evident from the letter being No. 44.00.0000.075.02. 001.2024-466 dated 19.07.2024 issued under the signature of the Senior Assistant Secretary, Public Security Division, Political Section-2, Ministry of Home Affairs that no such “shoot at sight” order was issued [Prosecution Documents Page 419].
54. That it is submitted that the Government’s decision to impose nationwide curfew under section 24(1) of the Special Powers Act, 1974 and to deploy army throughout the country in aid to civil power under the Code of Criminal Procedure as contained in the aforesaid letter dated 19.07.2024 was a lawful course of action as a measure to preserve public safety during widespread violence which is the mandate of the law upon the Government. Thus, the said decision cannot by itself constitute a crime under section 3(2) of the Act, 1973. Curfews are lawful administrative tools used worldwide during violent civil unrest. The Prosecution has produced no legal and factual material that the accused-petitioner either recommended or supported the use of excessive force or that any such force was applied pursuant to a directive he endorsed.
55. That it is submitted that the allegation that the accused-petitioner was “present and thereby automatically liable” is contrary to settled principles of criminal responsibility. Presence alone does not create culpability under section 3(2). Section 4(2) of the Act requires proof that an individual “ordered, solicited, incited, or induced the commission of such a crime” or “in any other way contributed” to its commission “intentionally” or “in the knowledge of the intention of the group to commit the crime.” The Prosecution has failed to allege, let alone prove, any such intentional contribution, knowledge, or common purpose.
56. That it is submitted that the alleged meeting of 19th July 2024 was a political coordination meeting of the 14-Party Alliance — a broad coalition comprising multiple political parties with differing levels of influence and responsibility. The accused-petitioner attended the meeting merely as a political stakeholder and had no executive power, control, or decision-making authority within the Government. Accordingly, he could not have taken part in, or consented to, any governmental directive, let alone one as serious as a “shoot-at-sight” order.
57. That it is stated that the imposition of curfew, as a measure to preserve public safety during widespread violence, cannot by itself constitute a crime under section 3(2) of the Act. Curfews are lawful administrative tools used worldwide during violent civil unrest. The Prosecution has produced no legal and factual material that the accused-petitioner either recommended or supported the use of excessive force or that any such force if any.
58. That it is submitted that the accused-petitioner’s attendance at the meeting, far from indicating criminal complicity, was motivated by a genuine effort to seek a political solution to the national crisis. His consistent public statements during that period, including the call for restraint and lawful response, stand in direct contradiction to the Prosecution’s portrayal.
Alleged shooting firearms from helicopter
59. That the Prosecution alleged in the Formal Charge that protesters were shot from helicopter by using SMG and Chinese Rifles upon detecting their position by using drones. These allegations are contradictory to the findings of the OHCHR Fact Finding Report on which the Prosecution heavily relied. Regarding the use of helicopter during the movement, the OHCHR Fact Finding Report states as follows:
“The Inspector General of Police and the Director-General of RAB have both acknowledged that RAB helicopters dropped tear gas and sound grenades on protesters but could not confirm that security forces shot firearms from RAB helicopters. RAB reported to OHCHR that it had fired 738 teargas shells, 190 sound grenades and 557 stun grenades from helicopters, but asserted that had not shot once with rifles or shotguns from helicopters, during the period of 1 July to 15 August 2024.
OHCHR has obtained and analysed a number of videos that showed personnel on RAB and police helicopters shooting tear gas from launchers. These launchers can look like rifles or shotguns from a distance, but the tear gas grenade leaves a distinctive white smoke trail when the launcher is fired. OHCHR has not been able to obtain any videos clearly showing shooting from rifles or shotguns from helicopters…
Based on the information obtained, OHCHR cannot confirm or exclude the shooting of rifles or shotguns from helicopters. It is possible that some victims who were hit seemingly from above by projectiles were in fact hit by rifles fired from elevated positions, by projectiles fired into the air and that then fell down, or by projectiles that ricocheted or fragmented before they hit the victim. The matter requires further investigation, with the full cooperation of RAB, Police and Army, including the personnel they deployed on helicopters.” [Para 142-144].
60. That it is submitted that even though the OHCHR categorically recommended to conduct further investigation regarding the alleged shootings from helicopter with the full cooperation of RAB, Police and Army including the personnel who were deployed on helicopters, there is no evidence in the documents submitted by the Prosecution along with the Formal Charge that any such investigation was ever carried out.
Alleged 1400 deaths and 25000 injured
61. That allegation made by the Prosecution that the accused-petitioner contributed to the deaths of more than 1400 civilians and the grievous injury suffered by more than 25000 civilians is without any basis and unsubstantiated by any legal evidence. Even though the Prosecution alleged 1400 deaths, the interim administration published the list of only 836 victims as evident from the Prosecution documents (Page 74-156). More so, at least 52 fake victims were found in the said list published by the interim administration which was also acknowledged by the interim administration as evident from news reports [https://www.prothomalo.com/ bangladesh/5kf3vl2dep]. On the other hand, the Prosecution alleged that more than 25000 civilians were injured, but as per the list published by the interim administration the actual number is only 13800 which also contains some fake names [https://www.prothomalo.com/bangladesh/asw0d3xy8x].
62. That it can be presumed that the Prosecution pick the number of deaths as 1400 from the OHCHR Fact Finding Report without any further scrutiny whereas the list published by the interim administration shows only 836 deaths. It is important to note here that the Secretary of the Ministry of Liberation War Affairs Ishrat Chowdhury told BBC Bangla that the number mentioned by the OHCHR might have included members of law enforcement agencies and others who were not counted by the Government. She categorically told, “সেই সময়ে তো পুলিশও মারা গেছে। অন্য পক্ষেরও কেউ মারা গিয়ে থাকতে পারে। তাদের মিলিয়ে ধরেছে কী–না, কিংবা তারা কীভাবে কাউন্ট করেছে সেটা আমরা তো বলতে পারবো না। সেটা তাদের থেকেই জানতে হবে।… আমাদের শুধু অভ্যুত্থানে নিহত শহীদদের তালিকা করেছি” [https://www.bbc.com/bengali/ articles/ cgkr1y6j246o]. Thus, the Formal Charge submitted against the accused-petitioner clearly proves that the investigation agency along with the Prosecution implicated the accused-petitioner in the instant case without any investigation at all.
63. That it is further submitted that the inherent improbability of the allegation undermines its credibility. It defies logic and common sense to suggest that numerous senior political figures, meeting openly in a well-known government venue, would collectively agree to an unlawful policy of extrajudicial killing — a policy that, if ever adopted, would be an explicit self-incrimination. The Prosecution’s theory lacks any basis in reason, practice, or political reality.
64. That it is asserted that no legal and factual material submitted by the prosecution exists that the accused-petitioner exercised “effective control” over any military, paramilitary, or police unit, as would be required for command responsibility under section 4(3) of the Act. The Prosecution has not demonstrated that he had any capacity to order, permit, or acquiesce in the conduct of law-enforcement agencies, nor that he had any duty to supervise or prevent the alleged acts.
65. That it is further noted that section 4(1) of the Act provides that “any individual who commits a crime within the jurisdiction of the Tribunal shall be responsible and liable for punishment.” The Prosecution has not identified any individual act or omission by the accused-petitioner amounting to participation in, or contribution to, any of the alleged crimes. The requirement of individual responsibility is wholly absent.
66. That it is submitted that section 4(2) further provides that criminal liability arises only where a person “orders, solicits, incites or induces the commission of such a crime” or “aids, abets or otherwise assists in its commission.” The Prosecution has failed to present any act or statement by the accused-petitioner meeting these statutory criteria. There is no proof of order, solicitation, inducement, or aid, nor any intentional contribution as envisaged under section 4(2)(d).
67. That it is stated that the claim of “superior responsibility” misconceives the law. Section 4(3) imposes liability on commanders or superiors who “fail to prevent or punish” their subordinates for crimes committed under their effective control. The accused-petitioner, being a civilian political leader outside government, had no subordinates, no chain of command, and no operational control. Consequently, section 4(3) cannot apply to him in any manner.
68. That it is submitted that, as in Charge No. 1, the Prosecution’s reliance on conjecture and media snippets rather than primary evidence falls below the threshold of a prima facie case as required by section 9(1) of the Act and Rule 37 of the Rules of Procedure.
69. That it is further submitted that the Prosecution has failed to establish actus reus, mens rea, or causation linking the accused-petitioner to any of the alleged crimes. The alleged “decision” of 19 July 2024 is unsupported by prosecution documents and materials, uncorroborated by purported witnesses, and contradicted by logic and context.
70. That it is therefore submitted that Charge No. 1, premised on conjecture and devoid of evidentiary support, is liable to be summarily rejected as disclosing no prima facie case under sections 3(2)(a), (g), (h) or 4(1)–(3) of the International Crimes (Tribunals) Act, 1973.
Charge No.2: Alleged Speech in a Public Meeting held in Keraniganj on 26 July 2024
71. That it is noted that the Prosecution alleges that on 26 July 2024 the accused-petitioner gave a speech in a public meeting Held in Keraniganj, where he allegedly portrayed the protesters of Quota Movement as “Jamaat-Shibir-BNP activists”, “terrorists”, “communal elements”. It is further alleged that, the speech broadcasted by Somoy TV and through this broadcast, the accused incited or abetted acts of violence and thereby participated in murders and other crimes against humanity under sections 3(2)(a), (g), and (h), read with sections 4(1), (2), and (3) of the International Crimes (Tribunals) Act, 1973.
72. That it is stated that the Prosecution has produced no material to demonstrate any nexus between the accused’s televised remarks and any subsequent unlawful act. No statement of the purported witnesses proves that violence occurred as a result of, or was encouraged by, the broadcast. The allegation therefore fails to satisfy even the threshold of a prima facie case under section 9(1) of the Act and Rule 37 of the Rules of Procedure.
73. That it is further noted that the evidentiary and legal deficiencies discussed in relation to Charge No. 02 apply mutatis mutandis to the present charge. In particular, the absence of any causal nexus between the accused’s remarks and the alleged offences, the lack of intent (mens rea) or direct participation (actus reus), and the failure of the Prosecution to demonstrate any plan, policy, or conspiracy under section 4(2) are equally relevant here. The present charge is, in essence, a repetition of the earlier unfounded allegation, without any new evidence or material to justify its inclusion.
74. That it is further stated that section 3(2)(a) of the Act criminalises murder when committed as part of a widespread or systematic attack against civilians. The accused neither committed nor directed any such act. His statements were confined to commentary on public disorder and contained no language advocating harm or persecution.
75. That it is submitted that section 3(2)(g) punishes abetment, conspiracy, or incitement to commit crimes within the Tribunal’s jurisdiction. The Prosecution failed to provide any legal or factual showing the requisite actus reus or mens rea—namely, a deliberate intent to provoke or facilitate the commission of any offence. Mere expression of opinion cannot constitute abetment in law.
76. That it is asserted that section 3(2)(h) concerns complicity or failure to prevent crimes. The accused-petitioner was not in any position of authority—political, administrative, or military—capable of directing or preventing law-enforcement actions. Hence, the necessary element of “effective control” under section 4(3) is wholly absent in respect of the petitioner.
77. That it is stated that section 4(2) requires proof that any contribution to a crime was intentional and made either with the aim of furthering a criminal purpose or in the knowledge that a group intended to commit such crimes. The Prosecution has failed to demonstrate any such intention on the part of the accused; none can be inferred from a brief televised speech.
78. That it is submitted that the allegations under Charge No. 02 are factually incorrect, legally misconceived, and not supported by evidence. Firstly the speech was given in relief distribution programme in Ghatarchor, Keraniganj, Dhaka rather than a public meeting. Programme is arranged to help poor people of accused’s electoral constituents who were suffering from long time violence, blockade and curfew. Md. Qamrul Islam urged the general people of his electoral constituents to be conscious about the sabotage material of the Quota Movement and help the law enforcement agencies by giving them information if they have any for better future. The telecasted speech, on its face, contains no statement that can reasonably be construed as an order, incitement, or call to violence. That is also submitted that including Ghatarchor, Keraniganj, Dhaka on area of accused’s electoral constituent had any incidence of violence or casualty during the whole Quota Movement 2024 and is this could be maintained only because of petitioners active role. That alleged speech of the accused-petitioner is-২৬ জুলাই ২০২৪, শুক্রবার, মোঃ কামরুল ইসলাম, তার নির্বাচনী এলাকা, ঢাকার কেরানীগঞ্জ উপজেলার ঘাটারচরে গরীব দুঃস্থদের মাঝ এাণ বিতরণ অনুষ্ঠানে এক বক্তৃতায় বলেন-
“এই যে সন্ত্রাস বাংলাদেশে, বিএনপি আন্তর্জাতিকভাবে চিহ্নিত একটি সন্ত্রাসী দল। জামাত-শিবিরকে সন্ত্রাসী হিসেবে আমরা জানি, একাত্তরের ঘাতক তারা। আজকে তাদের চরিত্র উম্মোচিত হয়েছে। বিএনপির সাথে তাদের সখ্যতা, এক যোগে তারা যে কাজটা করেছে, তাদের চরিত্র উম্মোচিত হয়েছে।
তারা এই আক্রমন করে, ধ্বংসাত্মক কর্মকান্ড করে, দেশের পরিস্থিতিকে ভয়াবহ করে, জনগণকে জিম্মি করে, এই আন্দোলনে, ছাত্রদের আন্দোলনে তারা তাদের কাঁধে সওয়ার হয়ে, আজকে তারা সরকার পতনের চেষ্টা করছে, সরকার ফেলে দিবে, শেখ হাসিনাকে ফেলে দিবে। ক্ষমতায় আসার লিপ্সা, এই ভয়াবহ চিত্র ক্ষমতায় আসার জন্যে। নির্বাচনকে তারা ভয় পায়। নির্বাচনে তারা ক্ষমতায় কোনো সময় আসতে পারবে না, তারা জানে। তাই এই পন্থায়, এই সন্ত্রাসের মাধ্যামে, দেশকে ধ্বংসের মাধ্যমে. তারা ক্ষমতায় আসতে চায়, শেখ হাসিনাকে ফেলে দিবে।
সমস্ত চিত্র, এই ধ্বংসাত্মক চিত্র আজ উম্মোচিত হচ্ছে। আজকে মাননীয় প্রধানমন্ত্রী বিটিভিতে গেছেন। আজকে মেট্রোরেলে গেছেন, বিটিভিতে গেছেন, বিভিন্ন জায়গায় এই ধবংসাত্মক কর্মকান্ডগুলোর চিত্র, ধ্বংসের চিত্রগুলো তিনি প্রত্যক্ষ করছেন।
আমি আর কথা বাড়াতে চাই না। ধ্বংসযজ্ঞের মধ্যে বাংলাদেশের মানুষ অনেক কষ্টে আছেন। বিশেষ করে দিন আনে দিন খায় যারা, একবারে গরীব মানুষ, নিরন্ন মানুষ, আজকে অনেক কষ্টে আছেন। এইটা অনুধাবন করতে পেরেই মাননীয় প্রধানমন্ত্রী বলেছেন, ‘তোমরা তাদের পাশে দাঁড়াও’। সাধারণ মানুষই আমাদের বন্ধু। আমরা সাধারণ মানুষকে সাথে নিয়েই, আমরা থাকতে চাই। এদেরই সরকার, সাধারণ মানুষের সরকার, জনগনের সরকার। (https://www.youtube.com/watch?v=bymR5FC7Y1o)
[unofficial translation: On Friday, 26 July 2024, Md. Kamrul Islam, at a relief distribution event for the poor and destitute in Ghatarchar, Keraniganj Upazila, Dhaka, in his constituency, said in a speech— “This terrorism in Bangladesh — BNP is an internationally identified terrorist party. We know Jamaat-Shibir as terrorists, they are the killers of [19]71. Today their true character has been exposed. Their closeness with BNP, the work they have carried out together — their character has been exposed. By carrying out this attack, by engaging in destructive activities, by making the situation in the country dire, by holding the public hostage — riding on the shoulders of this movement, the students’ movement — today they are trying to bring down the government, they will topple the government, they will topple Sheikh Hasina. This is greed to come to power, this horrific scene is for the sake of coming to power. They are afraid of elections. They know that they can never come to power through elections. So through this method, through this terrorism, through destroying the country, they want to come to power, they will topple Sheikh Hasina. The whole picture, this picture of destruction, is being exposed today. Today the Honourable Prime Minister went to BTV [Bangladesh Television]. Today she went to the Metro Rail, went to BTV, and in various places she is witnessing first-hand the scenes of these destructive activities, the scenes of devastation. I don’t want to say much more. In the midst of this orgy of destruction, the people of Bangladesh are suffering greatly. Especially those who live hand-to-mouth, the very poor, the destitute — they are suffering greatly today. Understanding this, the Honourable Prime Minister has said, ‘Stand beside them.’ Ordinary people are our friends. We want to remain together with ordinary people. This is their government, the government of ordinary people, the government of the people.”]
79. That it is noted that the Prosecution relies primarily on the broadcast itself and a handful of witness statements. Out of eighteen witnesses named, none establish any causal connection between the speech and the alleged offences.
80. That it is further stated that, at the time of the televised speech, public violence had already reached grave proportions—police killings, arson, and destruction of state property had been widely reported. The accused-petitioner’s comments acknowledging infiltration of extremist and opposition elements were consistent with facts then publicly known. Describing those realities cannot be equated with an intent to dehumanise or incite.
81. That it is submitted that, viewed in context, the accused’s statements were a warning against escalation, not a call for repression. He urged general people to be conscious about sabotage and to help the law enforcement to protect life and property. Such expressions of concern fall squarely within the bounds of legitimate political speech and cannot, by any reasonable interpretation, satisfy the actus reus or mens rea required for crimes under section 3(2).
82. That it is further asserted that the Prosecution’s characterisation of the accused’s remarks as “incitement” is a misreading of language and intent. Incitement under international criminal law demands a direct call to imminent unlawful action, which is entirely absent here. The alleged broadcast lacks both the content and context necessary to establish such liability.
83. That it is stated that, in light of the foregoing, no plan, policy, or conspiracy—as contemplated by section 4(2)—has been established. The Prosecution’s claim rests on speculation and political inference rather than evidence admissible under the Act.
84. That it is submitted that the attempt to criminalise a televised comment undermines the principle of legality and the right to freedom of expression protected by law. Legitimate political analysis, however disagreeable to some, cannot in law constitute a crime against humanity.
85. With regard to the allegations as made above that the allegation is legally unfounded, factually misconceived, and politically motivated. The charge mischaracterises a factual statement of historical truth as “incitement.” Calling Jamaat-e-Islami a terrorist and communal organisation does not constitute a crime under any provision of the Act, nor under any recognised principle of international criminal law and not related with the student movement.
86. That it is further submitted that the allegation itself implicitly concedes that Jamaat-e-Islami and its student wing had become deeply involved in the violent phase of the 2024 movement. Otherwise, criticism of Jamaat-e-Islami could not logically be equated with criticism of the movement itself. The Prosecution’s own framing thereby corroborates the Defence’s case that extremist infiltration had occurred.
87. That it is stated that Jamaat-e-Islami’s long record of sectarian and violent activities is a matter of judicially recognised fact, not political opinion. This very International Crimes Tribunal has in several judgments—Chief Prosecutor v. Ghulam Azam (para 375), Chief Prosecutor v. Motiur Rahman Nizami (para 416), and Chief Prosecutor v. Maulana Abdus Sobhan (para 578)—described Jamaat-e-Islami as a “criminal enterprise” and a “communal as well as criminal organisation”. The party’s culpability for crimes against humanity and genocide committed during the 1971 Liberation War has thus been conclusively established in this Tribunal’s own jurisprudence by various previous judgment.
88. That it is pertinent to note here that the fundamental right to freedom of association as enshrined under Article 38 of the Constitution of the People’s Republic of Bangladesh is not an unfettered right, rather subject to any reasonable restrictions imposed by law in the interests of morality or public order. The proviso of Article 38 categorically states, no person shall have the right to form, or be a member of the said association or union, if – “(c) it is formed for the purposes of organizing terrorist acts or militant activities against the State or the citizens or any other country”. As such the then government’s decision to ban Jamaat-e-Islami and its student wing Islami Chhatro Shibir was fully consistent with the Constitution in the prevailing situation at the relevant time.
89. That it is submitted that even after independence, Jamaat-e-Islami and its student wing, Islami Chhatra Shibir, have continued a pattern of extremist activity. For instance, the South Asia Terrorism Portal (SATP) lists numerous violent acts attributed to Shibir [https://www.satp.org/satporgtp/ countries/bangladesh/terroristoutfits/ics_tl.htm].
The IHS Jane’s Global Terrorism and Insurgency Attack Index 2013 ranked Islami Chhatra Shibir as the third most active non-state armed group in the world, just one rank below the Taliban of Afghanistan [Economic Times, https://economictimes.indiatimes.com/news/defence/jamaats-islami-chhatra-shibir-was-once-ranked-third-most-active-non-state-armed-group/articleshow/112916171.cms]. The European Parliament has likewise urged that political parties “associated with terrorist acts” in Bangladesh, including Jamaat-e-Islami, should be banned and urged Bangladesh Nationalist Party (BNP) to distance itself from Jamaat [The Daily Star, https://www.thedailystar.net/delink-with-jamaat-7244]. Jamaat-e-Islami is the party the top leadership of which has continued to espouse dangerous sectarian rhetoric, including a recent public call for a “final resolution” of the Ahmadiyya community [Dhaka Tribune, https://www. dhakatribune.com/bangladesh/306207/jamaat-releases-statement-condemning-ahmadiyya], a chilling echo of the Nazi-era calls for “final solution” that led to the Holocaust during the Second World War. Describing such conduct as communal or terrorist is therefore a statement of fact, not an act of hate speech. There are numerous examples like these.
90. That it is submitted that truth, in particular historical truth, cannot constitute incitement. Under international jurisprudence, incitement requires a direct call to commit an imminent unlawful act. The prosecution failed to show any remark of the accused-petitioner which may constitute the offence of ‘incitement’ under the Act, 1973 or international law.
91. That it is submitted that section 3(2)(a) of the Act criminalises murder as a crime against humanity; section 3(2)(g) criminalises abetment, conspiracy, or incitement; and section 3(2)(h) covers complicity or failure to prevent. The Prosecution has failed to show any actus reus linking the accused to an actual offence, or any mens rea demonstrating intent to commit or facilitate such acts.
92. That it is further noted that the accused-petitioner had no position of authority or control over any enforcement agency or armed group at the material time. His presence in a political alliance meeting does not in law give rise to “command responsibility” as categorised under section 4(3). The Prosecution has not alleged, let alone proved, that he issued any order or had any capacity to prevent or punish alleged crimes.
93. That it is submitted that the charge fails to meet the gravity threshold of an international crime. Labelling a political organisation “terrorist” cannot reasonably be compared to genocidal or dehumanising rhetoric seen in Rwanda or Nazi Germany. The accused’s remarks were grounded in well-documented fact, not prejudice or falsehood. To equate them with incitement to mass atrocity trivialises the very notion of crimes against humanity.
94. That it is submitted that the proposed Charge No.2 based on labelling to Jamaat-e-Islami a terrorist organisation reveals a lack of neutrality on the part of the prosecution. The immediate past Chief Prosecutor himself previously acted as defence counsel for senior Jamaat leaders who were convicted by this Tribunal and has long been politically aligned with Jamaat-linked entities, including the Amar Bangladesh (AB) Party. His inclusion of this allegation reflects a conflict of interest and a political bias rather than a genuine prosecutorial purpose.
95. That it is further submitted that the accused-petitioner, a valiant freedom fighter and a practicing lawyer of Apellate Division of Supreme Court of Bangladesh, democratic values, has consistently opposed Jamaat-e-Islami’s communal ideology. The present charge appears to be a politically motivated reprisal against him precisely because of his historic stance against Jamaat and its collaborators in 1971.
96. That it is therefore submitted that Charge No. 2 discloses no prima facie case under sections 3(2)(a), (g), (h) or 4(1)–(3) of the International Crimes (Tribunals) Act, 1973. The Prosecution has failed to demonstrate any act, intent, or consequence connecting the accused to the alleged crimes.
97. That it is respectfully prayed that the accused-petitioner is liable to be discharged from Charge No. 2 in its entirety, the same being baseless in fact, unsupported in law, and inimical to the principles of justice on which this Tribunal was founded.
Charge No.3: Alleged liability for 23 (Twenty Three) deaths in Badda and adjacent area
98. That the Prosecution alleges that from 19 July to 5 August 2024, twenty three persons—Md. Emon, Md. Hafizul Shikder, Md. Emdadul Haque, Liton, Md. Rayhan, Md. Nur Hossain Piyas, Md. Shohag Mia, Abdul Jabbar Sumon, Sagar Rahman, Md. Sirajul Bepari, Md. Al Amin Hossain Agomon Chishti, Md. Sajid Hawlader, Ashraful Hawladar, Alauddin Mollik, Alamgir Molla, Nishan Khan, Ramjan Ali, Al Amin, Sohel Mia, Al-Amin, Abu Rayhan, Mizanur Rahman, Md. Kamal Hossain Shobuj— were killed, and that the accused-petitioner is criminally liable for their deaths. It is further alleged that the accused acted as a “link” between local leaders of the Awami League (AL), the district police administration, and AL cadres, thereby facilitating a “shoot-on-sight” policy and the use of lethal force. The Prosecution asserts liability under sections 3(2)(a), (g) and (h), read with sections 4(1), (2) and (3) of the International Crimes (Tribunals) Act, 1973.
99. That it is submitted that as per section 16(1)(c) of the International Crimes (Tribunals) Act, 1973 every charge against an accused person shall state such particulars of the alleged crime as are reasonably sufficient to give the accused person notice of the matter with which he is charged. But the proposed Charge No.3 does not contain any particulars as to the date and time of occurrence, place of occurrence and manner of occurrence as such the proposed Charge No.3 is liable to be rejected summarily.
100. That it is submitted that the allegations made vague under the proposed Charge No.3 are factually baseless, legally untenable, and internally inconsistent. No evidence—documentary, oral, or digital—connects the accused to the specific killings alleged. The charge relies entirely on conjecture and the repetition of unverified narratives already addressed under earlier charges concerning imposing curfew and supposed “shoot-on-sight” orders.
101. That it is stated that the Prosecution has failed to produce any witness statement, communication record, or directive demonstrating that the accused issued, transmitted, or endorsed any instruction to use lethal force. No causal link has been established between any words or actions of the accused and the tragic deaths referred to in the charge, thereby fail to establish the actus reus or mens rea required under section 3(2) of the Act.
102. That it is submitted that, even on the Prosecution’s own showing, the accused had no command, control, or supervisory authority over any of the persons allegedly involved in the incident. Accordingly, the doctrine of “superior responsibility” under section 4(3) of the Act—requiring effective control and the ability to prevent or punish—has no application. The standards articulated in Prosecutor v. Delalić et al. (ICTY, 1998) make clear that mere political influence or presence at alliance meetings cannot establish command responsibility.
103. That it is further stated that the Prosecution has not submitted any credible legal or factual material of a plan, policy, or conspiracy as required by section 4(2)(d) of the Act. No minutes of meetings, communications, or contemporaneous documents have been produced to show that the accused shared any criminal purpose or intention with those who allegedly committed the killings. Absent of proof of intent or knowledge, liability under section 4(2) cannot arise.
104. That it is stated that section 3(2)(a) of the Act criminalises murder when committed as part of a widespread or systematic attack against civilians. No evidence has been provided that the killings in Badda formed part of any such attack, let alone that the accused participated in or furthered it. Isolated incidents of violence—however regrettable—cannot satisfy the threshold of crimes against humanity.
105. That it is submitted that the absence of lawful authority, causal connection, and intention—combined with contradictions within the Prosecution’s own evidence—renders the allegation wholly speculative. To attribute liability to the accused on the basis of political association or alliance membership would offend the principles of legality (nullum crimen sine lege) and individual criminal responsibility enshrined in section 4(1) of the Act.
106. That it is therefore respectfully submitted that Charge No. 03 is liable to be summarily rejected and the accused-petitioner is entitled to be discharged in the interests of justice, as it discloses no prima facie case under sections 3(2)(a), (g), (h) or 4(1)–(3) of the International Crimes (Tribunals) Act, 1973. Because, the Prosecution’s theory is unsupported by evidence, contradicted by its own record, and legally unsustainable.
EVIDENTIARY DEFECTS AND LACK OF PRIMA FACIE CASE
107. That it is submitted that the failure of the Prosecution and the Investigation Agency to consider the prevailing situation of the country at the relevant time that the movement was peaceful up to a certain point, and suddenly it turned into a terrorist attack killing police officials, breaking prisons, burning police stations, destroying mega public infrastructures, like – Metro Rail, Mayor Hanif Flyover, BTV etc., which may have compelled the law enforcing agencies on duty under the relevant provisions of law permitting law enforcement officials to use firearms and such failure shows that the investigation carried out against the accused-petitioner is grossly flawed as such the Formal Charge submitted on the basis of the said investigation is liable to be rejected summarily.
108. That the accused-petitioner humbly submits that the prosecution’s case rests upon a handful of vague, repetitive, mechanical, and unreliable witness statements and a controversial confessional statement made by former IGP Chowdhury Abdullah Al Mamun. None of these materials disclose any direct or indirect nexus between the accused and the incidents alleged. The prosecution has failed to produce a single credible item of evidence that attributes to the accused any act of order, incitement, facilitation, participation, or encouragement within the meaning of section 3(2) of the International Crimes (Tribunals) Act, 1973, and accordingly, the accused-petitioner is liable to be discharged.
109. That it is submitted that the doctrine of superior responsibility invoked by the prosecution is totally inapplicable in the instant case. Section 4(3) of the Act makes a commander or superior criminally liable only where he “had effective control” over subordinates, knew or should have known that they were committing crimes, and failed to prevent or punish them. The accused, at the relevant time, was neither a commander nor a superior officer; he held no executive authority or control and therefore could not exercise “effective control.” The elements of command responsibility articulated in Prosecutor v. Delalić et al. (ICTY, 1998) are absent in this case
110. That it is submitted that section 4(2) of the Act further provides that any contribution to a crime must be intentional, made either with the aim of furthering the criminal purpose of a group or in the knowledge of the group’s intention to commit the crime. No such intention or knowledge has been alleged, let alone proved, against the accused. On the contrary, the available evidence—as included in the prosecution documents does not show any involvement of the accused.
111. That it is further submitted that the Office of the United Nations High Commissioner for Human Rights (OHCHR) Fact-Finding Report (2025) has been wrongly presented as evidence in the instant criminal proceedings. The said report itself categorically disclaims being a criminal investigation conducted under judicial standards. It expressly states that its findings were based on open-source and testimonial materials, and that it was not intended to determine individual criminal responsibility.
112. That it is submitted that one member of the OHCHR fact-finding team publicly clarified that the report was never meant to be used as evidence in any criminal proceeding, domestic or international. Nevertheless, the prosecution has misrepresented the report by submitting it as substantive evidence before this Tribunal—an attempt to borrow the institutional credibility of the OHCHR……………. (and by extension, the United Nations) to lend false legitimacy to an otherwise deficient case. This is both misleading to the public and contrary to fair-trial principles.
113. That it is further submitted that it is also important to note that the report in question was produced solely under the administrative authority of the OHCHR and not as a United Nations-mandated investigative mechanism—unlike the Independent International Fact-Finding Missions on Myanmar, Venezuela, or Palestine, which were established through formal resolutions of the Human Rights Council. The present report therefore carries no quasi-judicial or evidentiary status and cannot lawfully be used to sustain criminal charges before this Honourable Tribunal. The prosecution’s reliance upon it constitutes a “legitimacy grab” unsupported by any legal basis.
114. That it is submitted that the prosecution has failed to assess any legal framework governing the use of force by law enforcement or how such framework was allegedly breached. Nor has it shown how the accused’s political position, without any executive role, related to the incidents complained of. In the absence of a demonstrated nexus between the accused’s conduct and any prohibited act under section 3(2) of the Act, the theory of the prosecution collapses.
115. That it is further noted that section 3(2) of the Act defines crimes within the Tribunal’s jurisdiction, but only when committed “as part of a widespread or systematic attack directed against any civilian population.” The prosecution has failed to establish that any such attack occurred pursuant to a policy, plan, or direction in which the accused participated. Isolated acts of violence by law enforcement or third parties, even if proved, cannot satisfy this threshold.
116. That it is stated that the cumulative defects—unreliable witness statements, unverified digital evidence, suppression of exculpatory material, misuse of the OHCHR report, and the absence of command authority or intent—render the prosecution’s case wholly unreliable. Even taking the evidence at its highest, it fails to establish any prima facie actus reus, mens rea, or causal nexus linking the accused to the alleged crimes under sections 3(2) or 4 of the Act.
117. That it is most respectfully submitted that there exists no sufficient ground to frame any charge against the accused-petitioner. The materials presented are speculative, derivative, and legally inadmissible, falling short of the prima facie standard required by section 9(1) of the Act. The prosecution has therefore failed to establish even a triable issue, and the formal charge is liable to be rejected in its entirety.
ONE-SIDED INVESTIGATION FOLLOWED BY BLANKET INDEMNITY
118. That it is stated that the investigation agency and the prosecution refrained itself from investigating into the actual context of July-August atrocities. The OHCHR Fact Finding Report found existence of ‘violent mobs’, ‘mixed crowd’ consisting of ‘vandals’, ‘mob armed with sticks and stones and who looked different from other protesters’, on many occasions. But the investigation agency and the prosecution did not take any step at all to identify those people who were mainly responsible for the atrocities occurred at the relevant time.
119. That it is respectfully submitted that the Prosecution’s investigation is fundamentally flawed, suffering from political bias and selectivity, having been conducted with the singular aim of targeting the Petitioner while intentionally disregarding overwhelming exculpatory evidence concerning the true perpetrators of the July 2024 atrocities. Specifically, the Prosecution has committed a dereliction of its statutory duty by consciously failing to investigate or acknowledge credible, publicly documented evidence of grave crimes committed by elements aligned with the protest movement, including confessions from key organisers, the Narsingdi Jail Break, police killings, the use of military-grade weapons etc., which would have established that the violence was the product of a pre-planned armed conspiracy, and not of any incitement by the Petitioner. This deficiency is compounded by the subsequent actions of the interim administration, which issued a blanket indemnity under the জুলাই গণঅভ্যুত্থান (সুরক্ষা ও দায় নির্ধারণ) অধ্যাদেশ, ২০২৬ shielding the actual perpetrators from prosecution, thereby establishing a pattern of selective justice that violates the principle of equality before the law and compromises the bona fides and independence of the entire process, rendering the prosecution legally unsustainable before this Honourable Tribunal, and as such, the formal charge is liable to be rejected.
RIGHT OF THE ACCUSED PERSON TO CHALLENGE THE EVIDENCE PRESENTED BY THE PROSECUTION AT THE PRE-TRIAL STAGE
120. That it is stated that Rule 37 of the International Crimes Tribunals Rules of Procedure, 2010 provides, if the Tribunal, upon consideration of record of the case and documents submitted therewith and after giving the prosecution and the accused an opportunity of being heard, finds that there is no sufficient ground to presume that the accused has committed an offence, it shall discharge the accused. Rule 37 of the said Rules, 2010 is consistent to the procedure of confirmation of charges laid down under Article 61 of the Rome Statute. As per Article 61(6) of the Rome Statute, at the hearing of confirmation of charges an accused person may (a) Object to the charges; (b) Challenge the evidence presented by the Prosecutor; and (c) Present evidence.
121. That it is stated that the right of the accused-person to challenge the evidence presented by the Prosecutor and contest its probative value, particularly on the ground of insufficiency, at the pre-trial stage was affirmed in a number 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.
122. That it is submitted that in the case of T.M. Azharul Islam vs. The Chief Prosecutor [Criminal Appeal No. 38 of 2025] the Hon’ble Appellate Division held, “Indeed, a judicial responsibility attached to this Court at all material times to plug the gaps of the understanding of the applicability of the substantive standards of customary international law in the facts and circumstances which ought not to have been overlooked.” Hence, in the light of the said decision of the Hon’ble Appellate Division and the provision Article 61 of the Rome Statute read with Rule 37 of the International Crimes Tribunals Rules of Procedure, 2010, it is most humbly submitted that there is no sufficient ground to presume that the accused person committed the crimes charged as such the accused-petitioner is liable to be discharged.
123. That it is submitted that the Formal Charge submitted by the Prosecution does not disclose any prima-facie case against the accused-petitioner under the International Crimes (Tribunals) Act, 1973, and as such, the accused-petitioner may kindly be discharged from the instant case.