Judgment Review Ghulam Azam verdict
Mitigated sentence for aggravated crimes?
The 15 July 2013 verdict of the ICT-1 sentencing Ghulam Azam for 90 years imprisonment has caused widespread controversy in Bangladesh and abroad. The sentence has been hailed as satisfactory by the government, inadequate by prosecution, and unjust by defence. Unlike other ICT verdicts involving direct participation of the accused, Ghulam Azam did not directly participate in the commission of the designated crimes in 1971. He was charged for civilian leaders' superior responsibility for his statements and speeches inciting hate and violent response by his followers culminating in crimes against humanity and genocide in Bangladesh in 1971 and for his failure to prevent the commission of those crimes.
In armed conflicts, the doctrine of superior responsibility holds a superior in command responsible for acts or behaviours of subordinates and followers within the superior's sphere of influence. The failure of a superior to control, regulate, and prevent subordinates from committing crimes is regarded as overtly condoning, if not covertly endorsing, those crimes and hence responsible. This well established legal position has taken a step ahead by the International Criminal Tribunal for Yugoslavia (ICTY) by stating that 'the criminal culpability of those leading others is higher than those who follow' and that military leaders convicted of superior responsibility would receive harsher sentences than those followers who actually committed the crimes (Prosecutor v Dragoljub Kunarac, 22 Feb 2001).
In cases of a civilian leader's superior responsibility, the sentencing is comparatively severer than military leaders, which is evident from the sentencing of the International Criminal Tribunal for Rwanda (ICTR) in which the majority superiors convicted were political and civilian, not military, leaders. Both ICTY and ICTR showed a heightened sensitivity to crimes against humanity, genocide, and ethnic cleansing motivated and instigated by political and civilian leaders on the grounds of political and ideological affinity, ethnocide, and religious persecution as opposed to usual crimes committed by members of armed forces during routine engagements in war. Although civilian leaders do not usually commit crimes directly through active participation, their superior responsibility over their subordinates directly contributes to and shapes the environment of the commission of crimes and impunity. There are many cases (mentioned below) where civilian leaders convicted of superior responsibility resulted in far heavy sentences because of their prominent status and legendary reputation among their followers, who looked upon their leaders as examples and were subject to special influence. These cases illustrate the role that civilian leaders can play in masterminding and propagating genocide and hate crimes, particularly in Rwanda by wielding a uniquely potent power over their followers contributing to the incitement of genocide. These factors led the ICTR to deliver heaviest sentences to civilian leaders.
It is a worldwide practice that judges determine sentences pursuant to specific guidelines, which afford wide discretion in determining sentences. Similarly all international crimes tribunals' sentencing parameters give judges discretion to ascertain the appropriate sentences for convicts of superior responsibility. While statutory mandates do not limit judges, their judicial mind overemphasises the absence of superiors' direct participation in and connection with the crime, which often dictates the determination of the degree of culpability. Also the practice of weighing between aggravating and mitigating factors varies from tribunal to tribunal and from judges to judges. Aggravating factors, such as the abuse of position and authority, hate speeches and statements, discriminatory mind, reprehensible motives, premeditated plan, brutal and vicious manner of crimes, innocent civilian victims, and length of the crime period, may lead to heavier sentences. Mitigating factors, such as cooperation with the prosecution, acting under superior order, admission of guilt, and expressions of remorse may lead to lighter sentences. In deciding a sentence in a given case, it is incumbent upon the tribunal to weigh up aggravating and mitigating factors. In Prosecutor v Akayesu (2 Oct 1998), Prosecutor v Ntagerura (25 Feb 2004), Prosecutor v Kayishema (21 May 1999), Prosecutor v Musema (27 Jan 2000), Prosecutor v Bagosora (18 Dec 2008), and Prosecution v Nahimans (3 Dec 2003), the ICTR found their respective aggravating factors outweighed their mitigating factors. The accused deliberately and consciously led their followers over whom they exercised clear, definitive, and effective control, breached their duties and remained inactive in preventing their followers from committing crimes.
The ICT-1 dealt with civilian's command responsibility (para 308) and ICTY and ICTR jurisprudence and case law (paras 317-331) to show the de facto authority of civilian superior attracting heavier sentences (paras 332-343) and their relevance to s4(2) of the 1973 Act (paras 344-354). It then contextualised in relation to the position of Ghulam Azam (paras 355-370). Citing the ICTY's Prosecutor v Blaskic (3 Mar 2000), the ICT-1 observed that 'superiors are liable to be awarded heavier sentences even than that of actual perpetrators ...the plea of old age or belated prosecution does not diminish the guilt of the accused' (para 391). Essentially the ICT-1 maintained that no mitigating factor can lessen the degree of culpability and the crime, which led it to unanimously hold that Ghulam Azam deserved capital punishment by virtue of 'legal position and the gravity and magnitude of the offences committed by the accused' (para 392). These observations are quite consistent with the overwhelming majority decisions of international crimes tribunals and commendable ones.
In determining the sentence however, the ICT-1 departed from its own position of 'highest punishment' (para 392) to a lighter sentence in view of Ghulam Azam's personal circumstances of old age and ailment as mitigating factors. The consideration of mitigating factors can reduce punishment only when they outweigh aggravating factors, which is common in all sentencing in cases cited above. Even the Blaskic case that the ICT-1 relied upon (para 391), the ICTY took into account Blaskic's non-cooperation with the prosecution, ideological motives and determined plan for the crimes, and great number of victims; and held that the aggravating circumstances outweighed the mitigating circumstance of relatively young age and the fact that he did not directly participate in the crimes. In other words, the age, regardless of young or old, of the accused standing alone is not enough for a reduced sentence especially when it is superseded by serious aggravating factors.
This standard of weighing between aggravating and mitigating factors appears to be missing in the sentencing paragraphs (paras 393-394) of the Ghulam Azam judgement. His 91 years of age, long ailment, and ongoing treatment in BSMMU hospital were considered 'as an extenuating circumstances for taking lenient view in the matter of awarding punishment to the accused' (para 394). The sentencing paragraphs made no mention of aggravating factors and their weighing against the mitigating factors of Ghulam Azam to show that his mitigating circumstances outweighed his aggravating circumstances. Ghulam Azam's persistent opposition to the cause and existence of Bangladesh is a historic fact even today. He never cooperated with the prosecution, never recognised the legitimacy of the ICTs and trials, never accepted the guilt of what he did in 1971, showed no remorse, never sought apology to victims and their relatives, and above all he remains arrogantly dismissive and denial of his pivotal and conscious complicity with the perpetration of most heinous crimes in 1971despite the establishment of all 5 charges against him beyond any reasonable doubt. Had these aggravating factors been weighed against his mitigating old age and ailment, the scale of sentence would have been tilted towards the former justifying maximum punishment.
The sentence, based solely on the mitigating factors devoid of their weighing against the aggravating factors, appears to be a mitigated punishment for aggravated crimes and an inferior sentence for superior criminal responsibility. Commenting on the failure to punish appropriately 'for extraordinary crimes', ICTY Prosecutors Mark Harmon and Fergal Gaynor said: 'a slap on the wrist of the offender is a slap in the face of the victims': (2007) 5 J Int'l Crim Justice, 712. Innumerable victims and their relatives in Bangladesh echo such a feeling.
The author is a Professor of Law, Macquarie University, Sydney, Australia.
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