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Trial of Lt. Col. Redowanul Islam and others

Court 1

Case no 6/2025

24 Dec 2025

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Redwanul Islam application to discharge

This is the text of written application by the accused Lt. Gn Redwanul Islam seeking discharge.

  1. That this is an application under Rule 37 of the International Crimes Tribunals Rules of Procedure, 2010 for discharging the accused-petitioner from the instant ICTBD Case No. 06 of 2025.
  2. That the Prosecution submitted the Formal Charge in the instant case against the accused-petitioners as accused persons along with two other accused persons under section 3(2) (a), (g), (h), 4(1), 4(2) and 4(3) of the International Crimes (Tribunals) Act, 1973.
  3. That the accused-petitioner voluntarily surrendered before the Hon’ble Tribunal on 22.10.2025 and on that date he was shown arrested in the instant case.
  4. That thereafter, the case was fixed for hearing the charge matter on 04.12.2025 and on that date the accused-petitioner submitted an application for direction upon the jail authority for allowing privileged communication with his learned counsels inside the jail in order to prepare the defence. Accordingly, the Hon’ble Tribunal was pleased to allow the said application of the accused-petitioner.
  5. That thereafter, on 07.12.2025 the learned counsel of the accused-petitioner submitted the application for obtaining the certified copy of the said order dated 04.12.2025, but he was provided with the said certified copy of the said order till date.
  6. That the statements made in paragraph Nos. 1 to 1.25 of the Formal Charge are politically motivated with which the accused-petitioner being law abiding, bona fide and patriotic official of Bangladesh Army had no nexus. The accused-petitioner, during the time frame of the alleged allegations was performing his duties as Odhinayok of 26 BGB. The accused petitioner served in the Bangladesh Army for more than 25 years and, like any patriotic soldier, he has played an unblemished role whenever and wherever his command placed him for duty.

PROFILE OF THE ACCUSED-PETITIONER

  1. That the accused person is from pious Muslim family and he has no political connection or affiliation or alliance with the political party, i.e., Bangladesh Awami League, which was in power at the time of the alleged allegations brought against him, or any other political parties whatsoever, and the accused-petitioner always performed his duties as per the Constitution of Bangladesh and the existing laws at the time of the alleged allegations, and he has always performed his duties to protect the independence and sovereignty of Bangladesh and the safety and security of the citizens of Bangladesh with utmost care and patriotism.
  2. That accused-petitioner’s career highlights include being the first and only Bangladeshi Army officer since 1971 to successfully complete double Advanced Commando Training from both Bangladesh and Pakistan. He has been awarded three national gallantry and distinguished service medals, including the Sena Gaurav Padak (SGP) for performance during Operation Holy Artisan in 2016, the Sena Utkorsho Padak (SUP) in 2017 for distinguished service in landslide disaster management, and the President Border Guard Medal (PBGM) in 2023 for outstanding contribution in neutralizing 18 major narcotics-smuggling routes. Additionally, he has received multiple US military citations for providing high-quality training to US Special Forces, US National Guard, and US Marines, served in two UN peacekeeping missions with performance citations, and was honored as the Best Commanding Officer in 2016. His academic qualifications include being a Graduate of the prestigious Defence Services Command & Staff College and completing three Master’s degrees.

THE QUOTA-PROTEST MOVEMENT: A GENERAL VIEW

  1. That in July and August 2024, Bangladesh witnessed an unprecedented civil unrest and uprising against the country’s long-time leadership of the Awami League. A movement demanding for abolition of the quota in 9th grade government services ultimately turned into a civil unrest and uprising against the Government which caused the death of many innocent civilians as well as members of disciplined forces, physical attacks on members of disciplined forces including the members of both 26 BGB and 5 BGB, police stations and outposts, State establishments including KPIs (Key Point Installations) etc.
  2. That Article 29 (1) of Part III of the Constitution of Bangladesh states that there shall be equality of opportunity for all citizens in the employment or promotion of the service of the Republic, i.e. Government jobs. Clause (a) of Article 29 (3) says as follows:

“Nothing in this article shall prevent the state from making special provision in favour of any backward section of citizens for the purpose of securing their adequate representation in the service of the republic.”

  1. That in pursuance to the said provision of the Constitution, the Government introduced different categories of quota in 9th grade government jobs from time to time since the independence of Bangladesh. As of 2018, there was a 56% quota for the government jobs in the country. Of this, 30% of seats were reserved for descendants of freedom fighters, 10% for women, 10% for residents of backward districts, 5% for people from minority groups, and 1% for people with disabilities. However, if no candidate from the relevant quota is found, those positions were filled from the merit list of general candidates.
  2. That previously in 2018, protests were held at various educational institutions across the country demanding quota reforms. The then Government, in the wake of the student movement, eliminated all forms of quotas vide a Circular as contained in Memo No. 05.00.0000.170.11.07.18.276 dated 4th October, 2018 issued by the Ministry of Public Administration to ensure the recruitment of meritorious and qualified individuals for positions in grades 9 to 13 (formerly known as first and second-class jobs) in government employment. However, quotas for third and fourth-class posts (grades 14 to 20) remained in effect.
  3. That being aggrieved by and dissatisfied with the aforesaid Circular dated 4th October, 2018, one Mr. Ohidul Islam and others, children of nationally recognized valiant freedom fighters, as petitioners filed a Writ Petition being No. 6063 of 2021 before the High Court Division of the Supreme Court of Bangladesh under Article 102 of the Constitution of the People’s Republic of Bangladesh challenging the legality of the said Circular.
  4. That on 5th June 2024, one Divisional Bench of the Hon’ble High Court Division of the Supreme Court of Bangladesh by a Judgment passed in the said Writ Petition No. 6063 of 2021 declared the aforesaid Circular to be illegal, to have been issued without lawful authority and is of no legal effect.
  5. That suddenly on the next day students came to the streets and brought out protest marches at different universities across the country demanding the cancellation of the quota system. On 9th June 2024, a student delegation submitted a memorandum to the Attorney General urging the retraction of the High Court’s decision and the reintroduction of the Government’s circular of 2018. Meanwhile, the Government, on the same day at the earliest opportunity, filed a Civil Miscellaneous Petition to the Appellate Division seeking stay operation of the High Court’s Judgment and the Judge-in-Chamber of the Appellate Division fixed 4th July for hearing the said Petition by the full Court of the Appellate Division.
  6. That on 4th July the Advocate for the respondent sought time due to personal reasons and the Appellate Division adjourned the hearing. Since the matter was sub judice before the Apex Court of the Country, the Government had no option but to wait for the outcome of the legal proceeding and the Government repeatedly urged the students to wait till disposal of the matter by the Appellate Division.
  7. That on the next day of hearing, i.e. 10th July, 2024, the Appellate Division directed the parties to maintain the status quo in respect of the subject matter and asked the Government to file a regular Leave-To-Appeal. But the organizers of the student movement, by shifting their position, came up with a new demand asking the Government to abolish the quota system while the matter was already subjudice before the highest Court of the country.
  8. That thereafter, the full text of the Judgment of the High Court Division was released on 14th July 2024. On the same day, a delegation of quota reform protesters presented their memorandum to President Mohammed Shahabuddin at Bangabhaban, i.e. the Official Residence of the President, giving an ultimatum of 24 (Twenty-Four) hours to reinstate the Government circular of 2018. On the other hand, upon receipt of the full Judgment of the High Court Division the Government filed Civil Petition for Leave to Appeal on 16th July, 2024 and the Hon’ble Appellate Division was kind enough to fix 7th August 2024 for hearing of the said Civil Petition for Leave to Appeal.
  9. That on 14th July 2024, a statement of the then Prime Minister at a press conference agitated student protester, and they came to the streets at midnight. At this point, Bangladesh Chhatro League (BCL), the student wing of the ruling party Awami League, separated itself from the protests and a confrontation began between the BCL and the protesters. On 15th July a news spread in social media that two student protesters were killed by BCL. This rumor also got public attention when the US Department of State also made a similar status on their social media pages, even though there was no report either in Bangladeshi media or from law enforcement agencies regarding any death during the student protests till that time. But such false claims fueled agitation among student protesters, and the movement turned out to be violently orchestrated by vested groups and like-minded activists. The camouflaged activists got involved in violent clashes with members of the law enforcement forces.
  10. That on 18th July 2024, the Government formed a one-member judicial commission of inquiry comprising of a judge of the High Court Division of the Supreme Court of Bangladesh. On the same day, the Judge-in-Chamber of the Appellate Division on the prayer of the learned Attorney General rescheduled the hearing of the aforementioned Civil Petition for Leave to Appeal and fixed 21st July for hearing following a special arrangement as the Supreme Court remained on a vacation at that time. By this time due to widespread misinformation and disinformation on social media, nothing could calm down the protesters, different public establishments and infrastructures, including Bangladesh Television (BTV) Bhaban (a KPI), which is the only state-owned television, were attacked and vandalized in different places of the country. In such a situation, finding no other alternative to protect the lives of civilians and the public infrastructures, the Government had to impose a nationwide curfew from 20th July 2024.
  11. That on 21st July 2024, the full bench of the Appellate Division led by the then Hon’ble Chief Justice Obaidul Hassan set aside the Hon’ble High Court’s Judgment dated 5th June 2024. However, the Hon’ble Apex Court recommended to curtail quotas to only seven percent from the previous 56 percent, particularly five percent quota for children of freedom fighters, martyred freedom fighters and Biranganas (victims of sexual offences during 1971 struggle for liberation), one percent quota for ethnic minorities and another one percent for persons with disability and people of third gender.
  12. That after the disposal of the quota issue by the Hon’ble Apex Court, the organizers of the movement came up with a new demand seeking justice for killing of students immediately. On the other hand, Mr. Manzur Al Matin, an Advocate of the Supreme Court of Bangladesh along with others filed a Writ Petition being No. 9610 of 2024 before the High Court Division of the Supreme Court of Bangladesh seeking directions upon the law enforcement agencies not to shoot at quota reform protesters during their programs. The Division Bench of the High Court Division comprising of Mr. Justice Mustafa Zaman Islam and Mr. Justice S M Masud Hossain Dolon after hearing the parties rejected the said Writ Petition summarily vide order dated 4th August, 2024. However, the Court observed that all citizens have the right to participate in peaceful assemblies and emphasized that the police must follow legal directives.
  13. That meanwhile on 1st August, 2024 the Government increased the number of members of the judicial commission of inquiry by adding two more High Court judges, but nothing could calm the protesters down. On 3rd August, 2024 the Prime Minister Sheikh Hasina called upon student protesters to meet her at Gonobhaban (the official residence of the Prime Minister) to discuss about their demands, but the organizers/coordinators of the protest demanded resignation of the Prime Minister which ultimately led to the fall of the Awami League government on 5th August 2024.
  14. That following the events of July – August 2024 throughout the country, an interim government was formed on 8 August 2024. Thereafter, The BGB formed an investigation court as per BGB Act, 2010 on 21 August 2024 (Prosecution’s Volume of Documentary Evidence, Running Page No. 314, relevant page No. 318) against the instant accused – petitioner and others alleging that their demeanour and manner of handling the situation on the 17th and 18th July 2024 were not fit with the laws and regulations of BGB, e.g., the Eastern Frontier Rifles (Bengal Battalion) Regulations, 1922, and recorded statements of as many as 16 (sixteen) witnesses including the instant accused petitioner as Witness No. 1 (Prosecution’s Volume of Documentary Evidence, running page No. 319 – 325). On 29th August 2024, said BGB Investigation Court formed a summary of facts (Prosecution’s Volume of Documentary Evidence, running page No. 372 – 379), and passed their opinion (Prosecution’s Volume of Documentary Evidence, running page No. 380 – 383). On the same day, i.e., 29th August 2024, said Investigation Court of BGB proposed their recommendations stating inter alia that accused – petitioner No. 1 be sentenced to heavy punishment (Prosecution’s Volume of Documentary Evidence, running page No. 384 – 385; see paragraph Nos. 1 and 2), which the Director General of the BGB approved on 31st August 2024 (Prosecution’s Volume of Documentary Evidence, running page No. 386). In spite of this investigation and recommendation, the Investigation Agency with mala fide intention started their investigation against the instant accused – petitioner vide Investigation Agency’s Complaint Registrar No. 133 dated 6th October 2024. Thereafter, the prosecution of the ICT submitted the formal charges against the accused-petitioner for crimes against humanity including murder while the accused-petitioner was on active service in the Bangladesh Army as a Major. Consequently, the Hon’ble International Crimes Tribunal-1 took cognizance against the accused-petitioner on 08.10.2025 and issued warrant of arrest against him. Accordingly, the accused-petitioner showing utmost respect to the process of law voluntarily surrendered before the Hon’ble Tribunal on 22.10.2025 and on that date he was shown arrested in the instant case.

GROUND REALITY OF THE JULY 2024 MOVEMENT:

  1. That the “Quota Reform Movement” of July–August 2024, around mid-July degenerated into an armed and extremist uprising. The ground reality of the July 2024 movement was completely different to the narrative presented by the prosecution. The materials available in the public domain demonstrate that the movement, infiltrated by militant and vested elements, engaged in systematic violence, arson, and attacks on State institutions including KPIs like BTV Bhaban, which is not considered in the formal charge.
  2. That it is stated that the investigation agency along with the learned prosecution has measurably failed to consider that any responsible and disciplined force, like – BGB, under both domestic constitutional obligations and international law, would have been duty-bound to protect life and property and to use necessary and proportionate means to restore order according to the direction of the central command. The same obligation would rest upon any disciplined force in the world faced with such acts of mass violence. A few illustrative examples are –
  3. On 18 July 2024, a large group of demonstrators stormed the Bangladesh Television (BTV) headquarters in Rampura, Dhaka, breaking through the main gate and vandalising the premises. They set fire to two microbuses, several motorbikes, and a CNG-run auto-rickshaw near the entrance. Nearby, the traffic police assistant commissioner’s office and three motorbikes at a police outpost were also torched. Law enforcement responded with tear gas and sound grenades, and by evening, reinforcements from police, Border Guard Bangladesh, and Ansar arrived to regain control of the situation. [Source: https://en.prothomalo.com/bangladesh/city/2ttq6ulatg; https://www.bbc.com/news/articles/ck5g9xd9rrwo]
  4. On 19 July 2024, a violent attack on Narsingdi District Jail led to a major jailbreak in which 826 prisoners, including nine convicted militants, escaped after armed assailants stormed the facility, set fire to prison buildings, and looted weapons and supplies. These events are consistent with an organised armed uprising rather than a student demonstration. [Sources: https://www.thedailystar.net/news/bangladesh/news/one-year-narsingdi-jailbreak-177-inmates-still-large-3943166 and https://www.dhakatribune.com/352682
  5. On 4 August 2024, thirteen policemen were burnt to death in the attack on Nayetpur Police Station in Sirajganj District, while another was killed at Eliotganj Highway Police Station in Comilla. Multiple police stations and government establishments across the country were also attacked and vandalised in coordinated assaults. [Source: https://www.thedailystar.net/news/bangladesh/news/13-cops-killed-attack-police-station-sirajganj-3669641]
  6. According to initial media estimates published in the immediate aftermath of the July uprising, more than 500 police stations were attacked, looted and arsoned. So far, no follow up investigations have been reportedly carried out to determine the actual number of looted arms and the casualty figures among police personnel resulting from such attacks [Source: https://www.dhakatribune.com/bangladesh/nation/361394/kamrangirchar-police-station-recovery-slow-after ]
  7. That it is stated that the learned prosecution has completely failed to consider the infiltration of terrorists in the movement who were involved in destructive activities.
  8. The above examples, drawn from contemporaneous reports, public admissions, and statements of movement leaders, show that the July 2024 events constituted a violent and extremist insurrection, side by side to the civil unrest. But the formal charges submitted by the learned prosecution completely lack any information concerning this violent transformation of the student movement involving killings, arson, and coordinated attacks on State institutions, like – BTV Bhaban, due to which the accused-petitioner was deployed by the concerned authority, and as a decorated, disciplined and patriotic officer, took permitted actions to protect the KPI, i.e. the BTV Bhaban, employees of the BTV, lives of citizens, members of law enforcement forces and preserve public order.

THE REALITY AND THE ACTIONS TAKEN BY THE ACCUSED – PETITIONER

  1. That it is stated earlier that BGB Authorities formed an Court of Inquiry against the accused petitioner No. 1 and others for their actions during the uprising under Rule 22 of the eW©vi MvW© evsjv‡`k (Z`šÍ, c«wmwKDkb I wePvi) wewagvjv, 2015 (hereinafter referred as ‘BDR Rules’), read with section 70 of the eW©vi MvW© evsjv‡`k AvBb, 2010 and proposed that the accused-petitioner be sentenced with heavy punishment [Prosecution’s Volume of Documentary Evidence, Running Page No. 314 – 386].
  2. That the accused – petitioner as the Witness No. 1 narrated the situation under which he was deployed to address the violent situation in and around the BTV Bhaban, i.e., a KPI establishment, from 18 July 2024 to 20 July till Bangladesh Army took control of the area and from 2030 hours of 18 July 2024 till handing over to the Army, he and his force stayed inside the BTV Bhaban for more than 48 hours to protect the BTV Bhaban and its official while they were surrounded by 10-15 thousand people.
  3. That the accused-petitioner stated in his statement submitted before the BGB Court of Inquiry that after reaching the BTV Bhaban on 18th July he tried to negotiate with the crowd peacefully, and after that he entered the Bhaban to protect it from the vested groups and from that point he acted on the written order of the Executive Magistrates who were present there and he never had any intention to harm any civilian and as a well-trained and decorated officer he made sure that his actions follow the guidelines narrated in the Rules of Engagement and rules narrated in Article 310A and 310B of the Chapter 1 in The Eastern Frontier Rifles (Bengal Battalion) Regulations, 1922 and the said BGB Court of Inquiry concluded that the actions of the accused-petitioner caused zero casualty on the 18th and 19th of July 2024 during his duty in the BTV Bhaban. It is pertinent to mention that the BTV Bhaban is situated under the Rampura Police Station, and the opinion of the BGB Court of Inquiry concluded inter alia that during the prosecution proposed timeline he only operated within the area of BTV Bhaban and Shahbagh.
  4. That according to the aforesaid recommendations of the BGB Court of Inquiry, the accused-petitioner was sentenced to ‘forfeiture of SVC for the purpose of promotion for 06 (six) months with severe reprimand’ by the GOC ARTDOC Mymensingh vide order dated 17 December 2024 for his misdemeanour during the July-August 2024 unrest.

STANCE OF THE ACCUSED-PETITIONER ON THE QUOTA MOVEMENT

  1. That as a patriotic citizen of Bangladesh, the accused-petitioner personally fully supported the demand regarding the quota movement and for this reason, he negotiated with the civilians for peaceful resolution and only took measures which are ordered by the Executive Magistrates in writing for the protection of the civilian lives and properties, national establishments and the lives of the members of their respective forces. The accused-petitioner already apologised before the BGB Court of Inquiry for his misdemeanour during the uprising, and accepted the decision of the said court.

OVER-RIDING EFFECT OF THE BORDER GUARD BANGLADESH (BGB) ACT, 2011

  1. That it is submitted that section 4 of the aforesaid Border Guard Bangladesh (BGB) Act, 2011 (hereinafter, referred as ‘the BGB Act’) states that, [bangla text omitted] and being a specialised enactment passed after the International Crimes (Tribunals) Act, 1973, the BGB Act has an overriding effect over the 1973 Act, and the 1973 Act will not be applicable over the matters which are the sole subject matter of the BGB Act, and since the actiony of the accused-petitioner during the July-August 2024 uprising are covered by the said BGB Act 2011, the accused-petitioner cannot be charged for his alleged actions under the 1973 Act, and as such, the accused-petitioners are liable to be discharged.
  2. That it is further submitted that when two statutes conflict, courts generally apply the principle of lex posterior derogat priori—the later law overrides the earlier one, especially when both contain overriding clauses. This principle is reinforced when the newer law is specialized, as legislatures are presumed to intend that the specific, updated framework governs its subject matter. For example, if the International Crimes (Tribunals) Act 1973 and the Border Guard Bangladesh Act 2011 conflict, the 2011 Act would prevail because it is both later and tailored to the governance of BGB, whereas the 1973 Act addresses war crimes trials. Courts in Bangladesh have consistently held that repealed or superseded provisions cannot operate once a new law occupies the field, as seen in cases where proceedings under the ICT Act were dismissed after its repeal. In the UK, the principle was affirmed in Thoburn v. Sunderland City Council (2002), emphasizing that Parliament’s latest intent governs unless constitutional statutes are involved. This example shows that when two laws conflict, the newer specialized statute typically prevails, reflecting legislative intent and ensuring legal coherence and as such, the accused-petitioners are liable to be discharged.

RETROACTIVE MAJOR AMENDMENTS TO THE INTERNATIONAL CRIMES (TRIBUNALS) ACT 1973

  1. That it is submitted that the International Crimes (Tribunals) (Amendment) Ordinance, 2024 (Ordinance No. XIV of 2024), promulgated in September 2024 and given retrospective effect from 6 January 2009, introduced significant amendments to the International Crimes (Tribunals) Act, 1973. These amendments substantially altered the definitions of core crimes under section 3(2), including the expansion of crimes against humanity and the modification of the definition of genocide by omitting “political group” from the list of protected categories, and the insertion of a new section 3(3) importing, in part, the Elements of Crimes adopted by the International Criminal Court (ICC) pursuant to Article 9 of the Rome Statute and the section of Liability of Crimes has also been heavily amended and trying the accused persons under this retrospective amendment is illegal, and unconstitutional and, as such, the accused petitioners are liable to be discharged.
  2. That it is submitted that one of the major amendments made to the Act, 1973 is the insertion of “disciplined force” under section 2, 3 and 4 of the Act. “Disciplined force” is categorically defined under Article 152 of the Constitution. Disciplined force includes Bangladesh Army under Article 152 of the Constitution. Prior to the amendment of the ICT Act, 1973 in 2024, “disciplined force” did not exist either in Article 47 (3) of the Constitution or in the ICT Act, 1973, which clearly shows the intention of the legislature not to include the disciplined forces under the ICT Act, 1973. Article 47 (3) of the Constitution, as it stands now, does not include “disciplined forces”, but after amendment of the ICT Act, 1973, a member of any disciplined force can now be prosecuted under the said Act, and as such, the formal charge is liable to be discharged.
  3. That it is most respectfully submitted that section 3(3) on ICC’s  Elements of Crimes, as inserted, reads as follows:

“For the purpose of determining liability under sub-section (2), a Tribunal shall have regard to the Elements of Crime of the International Criminal Court (ICC), as adopted pursuant to Article 9 of the Rome Statute of the International Criminal Court, to the extent that they are not inconsistent with the provisions of this Act.”

It purports to import international standards of criminal liability while simultaneously subordinating them to the Tribunal’s domestic provisions “where inconsistent,” thereby nullifying the very harmonisation it claims to achieve. This conditional incorporation clause represents a fundamental inconsistency in legislative design and as such, the accused-petitioners are liable to be discharged.

  1. That it is submitted that such partial and conditional adoption of the ICC’s Elements of Crimes is internally contradictory and jurisprudentially unsound. The Elements of Crimes of the ICC are not a menu of options. They form an integrated and coherent interpretative framework inseparable from the procedural and evidentiary guarantees of the Rome Statute. To “adopt” them only insofar as they do not contradict the 1973 Act results in an incoherent hybrid regime — a legislative camouflage designed to create an appearance of compliance with international standards without actually ensuring substantive or procedural parity and as such, the accused-petitioners are liable to be discharged.
  2. That it is further submitted that the 2024 Amendment’s retroactive application from 6 January 2009 directly offends the principle of legality (nullum crimen sine lege, nulla poena sine lege) recognised in the International Covenant on Civil and Political Rights (ICCPR), to which Bangladesh is a State Party, and the Constitution of Bangladesh. Retroactive criminal legislation, particularly when it expands the scope of criminal responsibility or redefines the elements of the crimes, could potentially undermine the accused’s fundamental right to fair notice and the ability to prepare an effective defence and as such, the accused-petitioners are liable to be discharged.
  3. That it is most respectfully submitted that section 4 of the 1973 Act, as amended, continues to impose individual and superior responsibility retrospectively, extending liability to acts, omissions, and relationships that did not exist, or could not have been known to attract criminal sanction, at the material time. Such retroactivity goes to the root of legality, rendering the amendments ultra vires both the Constitution and Bangladesh’s international obligations and as such, the accused-petitioners are liable to be discharged.
  4. That it is further submitted that the mode of enactment of these amendments — by Ordinance rather than by parliamentary process — raises serious constitutional and institutional concerns. The Ordinance was promulgated during a period when Bangladesh was under the authority of an Interim Government led by a body of Advisers exercising limited executive functions under the President and as such, the accused-petitioners are liable to be discharged.
  5. That it is further submitted that the selective incorporation of the ICC’s Elements of Crimes under section 3(3), without corresponding adoption of the ICC’s procedural safeguards, renders the Tribunal’s legal framework internally inconsistent and misleading. The ICC’s substantive definitions operate within a procedural regime of the highest standard, encompassing disclosure obligations, presumption of innocence, right to counsel, equality of arms, protection of the accused’s rights, and the strict exclusion of tainted evidence under Article 69(7) of the Rome Statute. By importing substantive definitions alone, while ignoring the procedural foundations that make those definitions workable, the 2024 Amendment creates a façade of internationalisation without actual conformity and as such, the accused-petitioners are liable to be discharged.
  6. That it is further submitted that the legislative inconsistency introduced by section 3(3) also undermines the interpretative coherence of the Tribunal’s jurisdiction. If, as the section states, the Tribunal is to have regard to the ICC’s Elements of Crimes “to the extent not inconsistent,” then the Tribunal is placed in the untenable position of having to determine, case by case, the hierarchy of norms between the 1973 Act and the ICC framework — an exercise neither anticipated by Parliament nor guided by any clear rule of conflict resolution and as such, the accused-petitioners are liable to be discharged.
  7. That it is therefore respectfully submitted that the 2024 amendments, being retroactive, substantively inconsistent, procedurally incomplete, and lacking constitutional validation by an elected Parliament, cannot lawfully form the basis of any criminal prosecution under the International Crimes (Tribunals) Act, 1973. The accused-petitioner’s right to a fair, predictable, and legally certain trial has been materially prejudiced thereby, and any charges relying upon such amended provisions are liable to be rejected are bound to be legally unsafe in the long run and as such, the accused-petitioners are liable to be discharged.

PROCEDURAL AND INSTITUTIONAL DEFECTS

  1. That it is submitted that despite the concern raised by the OHCHR, the Prosecution hurriedly submitted the Formal Charge in the instant case against the accused-petitioners and others which created a serious risk of miscarriage of justice. The OHCHR in its fact-finding report also raised concern in this regard as follows:

“A number of interlocutors, including some public interest lawyers and human rights defenders, have expressed concern about these proceedings based on the ICT’s controversial legacy, its legal framework and continuing doubts, notwithstanding the change of government, as to its capacity to conduct genuinely independent, fair and effective proceedings. OHCHR was informed that ICT prosecutors are under pressure to move complex cases forward quickly to respond to public demands for justice, while lacking the capacity and resources to investigate, gather evidence, protect witnesses and conduct fair prosecutions through to judgment. Some interlocutors advanced that a State referral of the situation to the International Criminal Court (ICC) in The Hague would be preferable to avoid perceptions of partiality and ensure independent and impartial justice.” (Para 245)

  1. That it is further submitted that the OHCHR in its fact-finding report categorically recommended to consider referring the situation described in the said report to the Prosecutor of the International Criminal Court for investigation, in line with Article 14 of the Rome Statute (Para AAAA349). On March 6, 2025 Mr. Toby Cadman, Special Advisor to the learned Chief Prosecutor also urged the Interim Government of Bangladesh to refer the cases of the July-August massacres to the International Criminal Court in The Hague Source: https://cao.portal.gov.bd/site/news/0dc7da01-c24f-4f24-af0e-12f10c49e691/Toby-Cadman-asks-bd-to-refer-July-massacres-case-to-ICC-change-name-of-ICT]. But the Prosecution without considering the aforementioned recommendations hurriedly submitted the Formal Charge which manifestly shows that the Prosecution is being driven by pressure to conclude the trial by whatever means. In fact, OHCHR was informed that learned prosecutors are under pressure to move complex cases forward quickly to respond to public demands for justice, while lacking the capacity and resources to investigate, gather evidence, protect witnesses and conduct fair prosecutions through to judgment as evident from Para 254 of the fact-finding report and as such, the accused-petitioners are liable to be discharged.
  2. That it is further submitted that the present proceedings are before a Tribunal widely perceived as politicised; the selection and conduct of prosecution reflect lack of impartiality. The Chief Prosecutor and members of his team suffer conflicts of interest, having previously represented/supported the 2024 quota protesters, the very constituency now posited as persecuted, vitiating prosecutorial independence. This is analogous to the ICC’s Duterte matter where Prosecutor Karim Khan KC was disqualified due to prior involvement with victims; mutatis mutandis, a like conflict taints the instant prosecution. [Source: https://www.reuters.com/world/asia-pacific/icc-judges-disqualify-icc-prosecutor-khan-duterte-case-court-document-shows-2025-10-14/] and as such the formal charge is liable to be rejected.
  3. That it is further submitted that the investigation underpinning the Formal Charge lacks independence. The OHCHR Fact-Finding Report (2025) recorded systemic concerns about ICT investigations being conducted by serving/former police implicated in the events. The same report notes pressure to rush complex cases absent capacity for proper investigation, evidence-gathering and witness protection, corroborated by public statements setting arbitrary case-disposal timelines. The OHCHR further suggested, including the Prosecutorial Advisor Mr Toby Cadman [Source: https://cao.portal.gov.bd/site/news/0dc7da01-c24f-4f24-af0e-12f10c49e691/Toby-Cadman-asks-bd-to-refer-July-massacres-case-to-ICC-change-name-of-ICT], to consider referral to the ICC Prosecutor under Article 14. Notwithstanding, the Prosecution hurried the filing—signalling mala fides and risking miscarriage of justice. Also, the Chief Prosecutor himself admitted in one of his public speeches how he had to rush the proceedings [Source: https://dailyrepublicbd.com/?p=3358] and as such due to lack of independence and systematic concerns the accused petitioner is liable to be discharged.

SPECIFIC REBUTTALS TO THE CHARGES

  1. That it is submitted that the prosecution failed to propose specific, and clear events which could be based on a plausible factual matrix since the prosecution could not disclose all the necessary particulars of the alleged crimes as are reasonably sufficient to give the accused-petitioner notice of the matter with which the accused – petitioner is charged, which is a mandatory requirement under in section 16 of the 1973 Act. Moreover, place of occurrence and time of occurrence of the charges are contradictory to each other. Furthermore, the narration of the events further contradicts with documentary evidence submitted by the Prosecution and the allegations are merely speculative which cannot stand on its own and as such, the formal charge is liable to be rejected because it has failed the logical and practical test.
  2. That it is most humbly submitted that the prosecution asserts simultaneous commission of offences in different places, it creates an irreconcilable inconsistency that prejudices the accused-petitioner and undermines the fairness of trial. The law does not permit convictions based on hypothetical or mutually exclusive scenarios and therefore, the charges should be quashed as they are legally untenable and contrary to the principles of natural justice and due process.
  3. That it is further submitted that the prosecution has provided the witness statement of as many as 103 prosecution witnesses, and 822 pages of documentary evidence; however, none of the PWs are direct and neutral witnesses and failed to disclose any incriminating fact against the accused-petitioner, and similarly, none of the documentary evidence connect the accused-petitioner with the events in proposed charges and as such the formal charge is liable to be rejected.

THRESHOLD JURISDICTION AND CONTEXTUAL ELEMENTS (CRIMES AGAINST HUMANITY)

  1. That it is most respectfully submitted that the jurisdiction of this Honourable Tribunal under Section 3(2)(a) of the International Crimes (Tribunals) Act, 1973 attaches only where the Prosecution pleads and proves that the alleged acts formed part of a “widespread or systematic attack directed against any civilian population”. This contextual element is a cornerstone of crimes against humanity under both domestic law and international jurisprudence (see Prosecutor v. Kunarac et al., ICTY Appeals Judgment, 12 June 2002, paras. 86–92; Prosecutor v. Katanga, ICC Trial Judgment, 7 March 2014, paras. 1108–1110). The Formal Charge fails to satisfy this threshold since the Prosecution has not identified any State or organisational policy to attack civilians, nor any evidence of a coordinated plan. The July–August 2024 events were characterised by violent civil unrest and extremist infiltration, not by a structured campaign against a civilian population. In addition, the accused petitioners’ conduct falls outside the ambit of the contextual nexus since they were deployed only to protect the KPI installation, i.e., BTV Bhaban, and the Prosecution has failed to appreciate that, and as such, the formal charge is liable to be rejected.
  2. That it is further submitted that the prosecution has also failed to consider that according to the report of the BGB there was zero casualty while the accused-petitioners were deployed in the BTV Bhaban. Moreover, the prosecution failed to appreciate that International tribunals have held that isolated or sporadic acts, even if serious, do not constitute a “widespread or systematic attack” (Kunarac, para. 86). The ICC has further clarified that the contextual element requires proof of a course of conduct pursuant to a policy (Katanga, para. 1108). No such course of conduct is alleged or evidenced here. Accordingly, proof of a widespread or systematic attack is absent and any nexus between the petitioners’ conduct and such an attack, the charges under Section 3(2)(a) are legally untenable and must be struck at the discharge stage.

COMMAND RESPONSIBILITY — NO EFFECTIVE CONTROL, NO KNOWLEDGE, AND PREVENTIVE MEASURES TAKEN

  1. That it is most respectfully submitted that the Prosecution’s theory implicitly invokes superior responsibility under Section 4 of the International Crimes (Tribunals) Act, 1973, which mirrors international standards on command responsibility. Under both domestic law and international jurisprudence, liability for a superior requires proof of three cumulative elements, i.e., a. Effective control — the material ability to prevent or punish the commission of crimes by subordinates; b. Knowledge or reason to know — that crimes were being committed or were about to be committed; and c. Failure to take necessary and reasonable measures to prevent or punish such crimes. The Formal Charge neither pleads nor evidences any of these elements, and as such, the accused-petitioners are liable to be discharged.

ABSENCE OF EFFECTIVE CONTROL:

  1. That it is submitted that the prosecution has failed to consider that the petitioners were deployed exclusively for the protection of a Key Point Installation (BTV Bhaban) under central command directives during a nationwide curfew. Their operational authority was confined to the BTV premises and, they exercised no command over other units where the alleged killings occurred (Rampura, Hatirjheel, Badda, Khilgaon), which negates the “effective control” threshold required for superior responsibility (Čelebići, para. 256), and as such, the formal charge is liable to be rejected.

NO KNOWLEDGE OR REASON TO KNOW:

  1. That it is further submitted that the prosecution’s documentary evidence discloses no contemporaneous reports, radio logs, or orders indicating that the petitioner was aware of unlawful acts by subordinates or by any other units. On the contrary, his statements before the BGB Court of Inquiry (Witness No. 1) demonstrate attempts at peaceful negotiation, strict adherence to Rules of Engagement, and compliance with Articles 310A and 310B of the Eastern Frontier Rifles Regulations, 1922, which mandate graduated use of force and precautionary measures. These facts are incompatible with any allegation of acquiescence or deliberate omission, and as such, the formal charge is liable to be rejected.

PREVENTIVE AND PROTECTIVE MEASURES TAKEN:

  1. That it is most respectfully submitted that the BGB Court of Inquiry’s findings (Summary of Facts and Opinion, 29 August 2024) concluded that the petitioner’s actions caused zero casualties during 18–19 July within his operational zone. He acted under the written directives of Executive Magistrates and ensured the safety of civilians and KPI staff despite being surrounded by 10–15 thousand people. Such conduct evidenced proactive compliance with lawful orders and preventive measures, defeating any claim of failure to act, which the prosecution failed to appreciate, and as such, the formal charge is liable to be rejected.
  2. That it is submitted that international tribunals have consistently held that mere rank or presence does not suffice for command responsibility. In Čelebići, the Appeals Chamber stressed that “effective control is the material ability to prevent or punish” (para. 256). Similarly, in Bemba, the ICC overturned conviction because the Chamber failed to prove that the accused had the material ability to prevent crimes (paras. 167–170). Applying these standards, the petitioners’ limited, defensive deployment cannot ground superior responsibility, and as such, the accused-petitioners are liable to be discharged. Accordingly, absent proof of effective control, knowledge, and failure to act, the Prosecution’s reliance on Section 4 collapses. The contemporaneous BGB Court of Inquiry record, showing zero casualties and compliance with ROE, is fatal to any theory of command responsibility. The charges premised on this mode of liability are legally unsustainable and must be struck at the discharge stage.

LEX SPECIALIS — BGB ACT/RULES GOVERN USE OF FORCE; PROSECUTION MUST PLEAD BREACH

  1. That it is most respectfully submitted that Section 4 of the Border Guard Bangladesh Act, 2011 expressly provides that its provisions shall prevail notwithstanding anything inconsistent in any other law for the time being in force. This Act, together with the Border Guard Bangladesh (Investigation, Prosecution & Trial) Rules, 2015 and the Eastern Frontier Rifles Regulations, 1922 (Articles 310A and 310B), constitutes a comprehensive and overriding framework governing the deployment, rules of engagement, and use of force by BGB personnel during aid-to-civil-power operations. Accordingly, any assessment of the petitioners’ conduct must be undertaken by reference to these special norms, applying the principles of necessity, proportionality, and precaution embedded therein, before any criminal characterisation can lawfully be made. However, the Prosecution has not pleaded, nor attempted to prove, any specific breach of these statutory and regulatory standards. In the absence of such pleading, the invocation of international crimes jurisdiction under the ICT Act is legally unsustainable, and hence, the proposed charges are liable to be struck at the discharge stage.

RULES OF ENGAGEMENT & DOMESTIC LEGAL AUTHORITY

  1. That it is most respectfully submitted that the petitioner’s actions may kindly be assessed within the domestic legal framework governing the use of force by disciplined forces during aid-to-civil-power operations. The applicable instruments include:
    (i) Border Guard Bangladesh Act, 2011, particularly its provisions on duties, assistance to civil administration, and overriding effect under Section 4;
    (ii) Border Guard Bangladesh (Investigation, Prosecution & Trial) Rules, 2015, which codify operational accountability; and
    (iii) Eastern Frontier Rifles (Bengal Battalion) Regulations, 1922, Articles 310A and 310B, which prescribe Rules of Engagement (ROE) emphasizing graduated response, precaution, and proportionality. Within the Dhaka Metropolitan area, if the Prosecution disputes the existence of written Executive Magistrate orders, the Dhaka Metropolitan Police Ordinance provides an alternative lawful basis for deployment under the authority of the police command structure, thereby validating the petitioner’s operational posture. The factual record demonstrates compliance with these standards and with the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, which require necessity, proportionality, precaution, and accountability. The petitioner attempted negotiation, deployed non-lethal measures (tear gas and sound grenades), and maintained KPI security without causing civilian casualties, as confirmed by the BGB Court of Inquiry. The Prosecution has not pleaded any specific breach of these norms. In the absence of such pleading, criminal characterisation under the ICT Act is legally untenable, and the proposed charges are liable to be struck at the discharge stage.

NE BIS IN IDEM AND ABUSE OF PROCESS

  1. That it is most respectfully submitted that the present prosecution constitutes an abuse of process and violates the principle of ne bis in idem, which safeguards against repeated proceedings on the same factual nucleus. While disciplinary and criminal proceedings may co-exist in exceptional circumstances, international criminal jurisprudence recognises that where the same conduct has been finally adjudicated by a competent forum, a subsequent prosecution is oppressive unless it introduces materially distinct facts or a different legal character (Prosecutor v. Čelebići, ICTY Appeals Judgment, 20 Feb 2001, para. 412; Prosecutor v. Bemba, ICC Appeals Judgment, 8 June 2018, para. 170), and as such, the accused-petitioners may kindly be discharged.
  2. That it is further submitted that the Hon’ble Tribunal may kindly consider that in the instant case: (i) The BGB Court of Inquiry comprehensively examined the petitioner’s actions during the July–August 2024 unrest, recorded sixteen witnesses including both petitioners, and concluded that their conduct caused zero casualties within their operational footprint;
    (ii) The Director-General of BGB approved the Court of Inquiry’s recommendations on 31 August 2024; and
    (iii) The petitioners have already served disciplinary sanctions, including forfeiture of SVC for promotion for six months with severe reprimand (vide GOC ARTDOC order dated 17 December 2024). These findings and sanctions constitute a final disposition of the same factual matrix. A renewed prosecution under the ICT Act, without any new material facts or distinct legal character, is manifestly oppressive and contrary to fairness, legal certainty, and the rule of law as such the accused-petitioner may kindly be discharged from the instant case.

EVIDENTIARY DEFECTS AND LACK OF PRIMA FACIE CASE

  1. 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-petitioners is grossly flawed; as such the Formal Charge submitted on the basis of the said investigation is liable to be rejected summarily.
  2. That it is most respectfully submitted that the prosecution’s case rests upon a handful of vague, repetitive, mechanical, and unreliable witness statements and videos collected from social media. None of these materials disclose any direct or indirect nexus between the accused-petitioners and the incidents alleged. The prosecution has failed to produce a single credible item of evidence that attributes to the accused any act within the meaning of section 3(2) of the International Crimes (Tribunals) Act, 1973, and accordingly, the accused-petitioners are liable to be discharged.
  3. That it is submitted that none of the alleged digital materials has been subjected to independent verification. The individuals who purportedly verified the digital evidence are themselves members of the prosecution team, thereby compromising neutrality. Moreover, witnesses numbered 95 to 99, who appear linked to the digital evidence, have not provided any statements, depriving the Defence of the opportunity to challenge or test the provenance of the recordings. As such, the defence invokes audi alteram partem and in dubio pro reo, asserting that the accused was denied the opportunity to contest the digital evidence, which were allegedly obtained without judicial authorization or the consent of the parties involved, thereby violating the right to privacy under Article 17 of the ICCPR and as such, the accused – petitioners may kindly be discharged.
  4. That it is further 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, and as such, the accused – petitioners may kindly be discharged.
  5. 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 and as such, the accused – petitioners may kindly be discharged.
  6. 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 and as such, the accused – petitioners may kindly be discharged.
  7. 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.
  8. That it is most respectfully submitted that in the “Fact Finding Report” on the “Human Rights Violations and Abuses related to the Protests of July and August 2024 in Bangladesh”, the Office of the United Nations High Commissioner for Human Rights (OHCHR) categorically raised serious concern about the investigation conducted by the investigation agency of the International Crimes Tribunal Bangladesh. In this regard, the said report stated: “Public trust in the Police to conduct the effective investigations needed to sustain successful prosecutions remains low. As Bangladesh lacks an effective and independent mechanism to investigate criminal complaints involving police and other security forces, there is widespread concern that Police investigators will not duly investigate cases concerning their own current or former colleagues. Even the ICT’s investigation team reportedly relies entirely on serving or former police officers.” (Para 258)
  9. 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 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, and as such, the formal charge may kindly be rejected.
  10. That it is further submitted that materials not intended as prosecution evidence (including high-level situation reports) have been selectively invoked; indeed, even international reporting warned against treating such compilations as trial evidence while simultaneously criticising the ICT investigation’s lack of independence and as such, the formal charge may kindly be rejected.
  11. 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 and as such, the formal charge may kindly be rejected.
  12. 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 actus reus, mens rea, or causal nexus linking the accused to the alleged crimes under sections 3(2) or 4 of the Act and as such, the formal charge may kindly be rejected.
  13. That it is most respectfully submitted that there exists no sufficient ground to frame any charge against the accused-petitioners. 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 as such, the formal charge is liable to be rejected in its entirety.

ALLEGED “MISCHARACTERISATION” AND THE COMPLICITY, ABETMENT, FACILITATE, ORDER AND CONTRIBUTE TO ANY OTHER WAY THEORY — NO ACTUS REUS, NO MENS REA, NO KNOWLEDGE AND NO CAUSATION

  1. That it is humbly submitted that the Prosecution’s case rests on a mischaracterisation of the petitioner’s conduct as “complicity, abetment, facilitation, ordering or contributing in any other way,” yet the record discloses no underlying actus reus, no culpable mental element, no knowledge, and no causal nexus connecting them to any International Crimes Act offence. Under the ICT Act 1973, liability for accessory modes (Section 4(2)(b)–(d)) requires (i) conduct that facilitates or otherwise assists a crime and (ii) a contribution that is intentional and either aimed at furthering the group’s criminal purpose or made in the knowledge of the group’s intention to commit the crime; mere presence, association, or post‑hoc organisational role is insufficient. The petitioner’s own contemporaneous statements and the BGB Court of Inquiry’s findings (recording zero casualties during their protection of the BTV Bhaban, acting under operational directives to secure a KPI in the midst of violent unrest) undermine any inference that he committed any crime against civilians; rather, he was engaged in defensive, order‑restoring tasks consistent with rules of engagement and executive direction. On this evidentiary footing, the Prosecution’s accessory‑liability theory fails prima facie for want of prohibited conduct, specific intent/knowledge, and substantial contribution and as such, the formal charge is liable to be rejected in its entirety.
  2. That it is further submitted that the Prosecution’s theory is inconsistent with the ICC’s Elements of Crimes and its settled case law on modes of liability under Article 25(3). The ICC requires that aiding/abetting under Art. 25(3)(c) involves an affirmative act that substantially contributes to the principal offence, coupled with the purpose to facilitate the crime or advance knowledge of it; “any other contribution” under Art. 25(3)(d) must be intentional and either aim at furthering the group’s criminal activity or be made knowing the group’s intent. ICC chambers have emphasised that accessory liability demands more than proximity or authority: in Katanga, conviction under Art. 25(3)(d) turned on proof of a significant contribution and knowledge of the criminal common plan, whereas in Bemba et  the Appeals Chamber scrutinised (and limited) aiding/abetting to contributions meeting the actus reus threshold and the required mens rea—rejecting theories that elide those elements. The Prosecution here identifies no concrete acts by the petitioners that encouraged, enabled, or materially advanced the charged crimes, and points to no evidence that they knew of or shared any criminal plan; to the contrary, the contemporaneous record reflects protective deployment in a volatile environment. Because the ICT Act’s Section 4(2) mirrors Rome Statute language, a construction that dispenses with actus reus, mens rea, knowledge, and causation contradicts both the domestic text and international standards in the Elements of Crimes and ICC jurisprudence, and as such, the proposed charges on this theory should therefore be rejected for legal insufficiency.

ONE-SIDED INVESTIGATION FOLLOWED BY BLANKET INDEMNITY

  1. That it is respectfully submitted that the Prosecution’s investigation is fundamentally flawed, suffering from 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 vested elements aligned with the protests which would have established that the violence was the product of a pre-planned armed conspiracy. This deficiency is compounded by the subsequent actions of the Interim Government, which issued a blanket indemnity 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.

THE ACCUSED-PETITIONER’S RIGHT TO CHALLENGE THE PROBATIVE VALUE OF THE PROSECUTION’S EVIDENCE AT THE PRE-TRIAL STAGE

  1. 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 accused – petitioner is liable to be discharged.
  2. 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, if the hon’ble Tribunal fails to consider the prosecutorial bias and constitutional flaws at the charge framing stage, then it will represent a departure from these internationally recognized standards, and as such, the accused – petitioner is liable to be discharged.
  3. That it is most respectfully submitted that time and again the Hon’ble Tribunal has stated that it draws interpretative guidance from the Rome Statute and the Rules of Procedure of the ICC along with its judgments and orders; however, not considering the probative value of the prosecution’s evidence at this stage will clearly violate Article 67(4) and 67(7) of the Rome Statute which guarantee 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) <https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2012_01006.PDF>] 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 accused – petitioner is liable to be discharged.
  4. 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.