Responsible for Al-Badr crimes

This story was first  published on May 10, 2013 at http://thedailystar.net

Setting an example, the International Crimes Tribunal-2 yesterday held Muhammad Kamaruzzaman responsible for holding "superior status" over co-members of infamous Al-Badr force that had committed numerous crimes during the 1971 Liberation War.
The court refrained from sentencing Kamaruzzaman separately for his "superior status", as the prosecution didn't bring charges against him for his superior responsibility.
However, the court considered his superior position in the infamous force as "an aggravating factor in sentencing him".
Two tribunals, dealing with war crimes cases, earlier passed three verdicts in the cases against Abul Kalam Azad, Abdul Quader Mollah and Delawar Hossain Sayedee. But this is the first time that one of the tribunals has held a war crimes accused responsible for holding superior status.
In its verdict, the tribunal said the conducts, acts, behaviour, activities and significant attachment of Kamaruzzaman to the Al-Badr camps sufficiently established that he had such a level of authority and control over Al-Badr members. And he was in a position to prevent Al-Badr members from committing crimes.
"But instead of doing it, he [Kamaruzzaman] rather encouraged, motivated, advised, planned, influenced, instigated and provided substantial moral support and approval for effecting the actual perpetration of crimes by his co-members of Al-Badr force," said the judgment.
On June 4, 2012, the tribunal framed seven charges against him for holding liability under section 4(1) of the International Crimes (Tribunals) Act-1971, which says, "When any crime as specified in section-3 is committed by several persons, each of such person is liable for that crime in the same manner as if it were done by him alone."
And section 4(2) of the act talks about the mode of "superior liability". But no charges were brought against Kamaruzzaman under that section.
However, in its closing arguments, the prosecution said Kamaruzzaman, the president of Islami Chhatra Sangha, the then student wing of Jamaat-e-Islami, was the chief organiser of Al-Badr in greater Mymensingh.
As the commander of two Al-Badr camps in Mymensingh and Sherpur, Kamaruzzaman had acted in his capacity as "superior" of the force, and it was revealed through the witnesses' testimonies, said the prosecution.
Apart from being the "superior" of the Al-Badr force, Kamaruzzaman held "civilian superior responsibility," said the prosecution, and prayed to the tribunal for Kamaruzzaman's conviction for his superior status.
In its order, the tribunal said, "It is now settled that the doctrine of superior responsibility extends to civilian superiors only to the extent that they exercise a degree of control over their subordinates [the principal perpetrators] which is similar to that of military commanders."
"We are convinced to deduce that the accused [Kamaruzzaman] has also incurred criminal liability under the 'theory of civilian superior responsibility' which is covered by section 4(2) of the Act of 1973 and it may legitimately be taken into account as an 'aggravating factor', for the purpose of determining the degree of accused's culpability and awarding sentence."
The tribunal said it would not be appropriate to convict Kamaruzzaman under both sections 4(1) and 4(2) of the act.
"Where under both sections 4(1) and 4(2) responsibilities are found to have been incurred under the same charge framed, and where the legal requirements pertaining to both of these heads of responsibility are met, it would be appropriate to enter a conviction on the basis of section 4(1) only, and consider the accused's superior position as an aggravating factor in sentencing only," it said.