Today the Tribunal heard matters in the following cases:
- Chief Prosecutor vs. Mir Qasem Ali: Application for Medical Transport of Accused (Accused Not Present)
- Chief Prosecutor vs. Delwar Hossain Sayedee: Resubmission of Defense Closing Arguments (Accused Present)
Defense Counsel for Mir Qasem Ali filed an application requesting health specialized transport to and from the Tribunal for their client.
Abdur Razzaq, Senior Defense Counsel for Delwar Hossain Sayedee, continued submitting closing arguments on legal points for the 2nd consecutive day. He addressed issues of delay in prosecution, malafide intention of the prosecution, and the elements of the crimes as defined under International Customary Law.
Chief Prosecutor vs. Sayedee
Delay of 40 years
Abdur Razzaq continued his arguments on the point of delay of 40 years. He pointed to the examples of prosecutions in the International Criminal Tribunal for the former Yugoslavia (ICTY) and the Special Court for Sierra Leone (SCSL). He argued that it is unprecedented to begin prosecution after such a long time when the accused resides in the same country where the alleged crimes took place.
Abdur Razzaq submitted that the decisions of the Tribunal had prejudiced Sayedee on three occasions. First, the Tribunal admitted the out-of-court-statements of 16 witnesses into evidence under section 19(2) of the ICT Act 1973. Secondly, the Tribunal declined to admit into evidence 700 pages of documents produced by the Defense detailing the alleged activities and presence of witnesses at the Witness Safe House in contradiction to the Prosecution’s claims. Thirdly, the Tribunal refused to take into consideration the 17 hours of skype conversations and 230 emails between the former Chairman and outside legal expert, Dr. Ahmed Ziauddin. Razzaq expressed his hope that Tribunal would do justice in its final decision.
The Defense alleged that the prosecution against Sayedee was motivated by malafide intention. Abdur Razzaq submitted that before formal charges were framed against Sayedee he was unfairly prevented from going abroad. He further stated that Sayedee filed a writ petition on 12 August 2009 and that the High Court Division issued its judgment in favor of Sayedee. Razzaq alleged that on that same day Attorney General told the press that a case against Sayedee could be filed at any time, and in fact, a case was filed that evening. The initial complaint against Sayedee was made by Manik Proshari (PW-6) on 12 August 2009 (Exhibit-W) and the second complaint was made by Mahbubul Alam Hawlader (PW-1) on 30 August 2009 (Exhibit-F). Razzaq stated that the Prosecution relied on reports published in the Daily Jonokhontho dated 5 March2001 (Exhibit-8); the Daily Jonokhontho dated 25 Januray 2001 (Exhibit-85); the Daily Jonokhontho dated 17 July 2010 (after formation of the Tribunal); the Daily Shomokal dated 10 February 2007(Exhibit-34); and the Daily Vhorer Kagoj dated 04 November 2007 (Exhibit-11). Among these reports the oldest one was published in the Daily Jonokhontho in 2001. Razzaq alleged that the report was published just before the National Elections and showed clear political motivations and was designed to discredit Sayedee. Razzaq argued that before 2001 no one brought any allegations against Sayedee. Razzaq referred to some statements made by prominent ministers of the Ruling party as illustrations of the alleged malafide intention behind the proceedings. The Defense claimed that such malafide intent constitutes fraud, and cited the following cases in support of that allegation: 17 DLR 151, 39 DLR (AD) 1 and 39 DLR (AD)1.
Elements of Crimes
The Defense argued that the definitions of crimes within the ICT Act of 1973 do not coincide with international customary law.
Crimes against humanity
Abdur Razzaq submitted that under Article 15(1) of the ICCPR no one may be convicted for an offence which was not recognized as a crime under law in 1971. Razzaq submitted that section 3(2)(a) of the ICT Act 1973 was taken from Nuremberg which was the customary law in 1971. However, he asserted that under International Customary Law the Prosecution must prove that the alleged crime against humanity was committed as part of a “widespread and systematic attack” on civilian population (Prosecutor vs Dusko Tadic (1999) para 248, 646-658). Razzaq stated that the alleged acts must be committed in a systematic manner or on a large scale and that isolated acts alone could not constitute a crime against humanity. Razzaq argued that the Prosecution failed to prove that the alleged incidents of crimes against humanity were part of a widespread and systematic attack on the civilian population. Additionally he argued that the Prosecution did not even address these elements, either as part of the alleged facts nor as part of points of law. He stated that the burden is upon the prosecution to prove the elements of the alleged crimes and without proof of the element of “widespread and systematic attack” the Prosecution’s case was unsustainable.
The Defense addressed the ICTR case of Akayesu, on which the Prosecution previously relied. Razzaq distinguished between the two cases. He stated that in Akayesu the accused had both executive and legislative power that was used in the commission of the crime. Additionally there were live witnesses who testified to hearing Akayesue make incriminating decisions during a meeting. In the present case, however, Sayedee had no such power and the prosecution failed to prove the elements of crimes against humanity.
The Defense argued that in order to prove murder as a crime against humanity, the Prosecution must show that the act or omission of Sayedee substantially contributed to the death of the victim. He cited the case of Keang Guave Eve, in the ECCC (para 331-333). He alleged that the Prosecution failed to prove this element.
Regarding abduction, Razzaq submitted that abduction was not established as a crime against humanity in 1971 under international customary law. Therefore, following Article 15(1) of the ICCPR, Saydee cannot be convicted for abduction (contained in Charges 5, 8 and 13.
Regarding torture, Razzaq cited the Convention against Torture 1984 and Article 7(1)(e) of the ICC in arguing that to the level of a crime against humanity, the alleged torture must result in severe physical or mental pain or suffering, must be imposed for a particular purpose, and must be committed by a person in a position of official capacity or authority. Razzaq alleged that in Charges 7, 8, 10 and 13, the Prosecution failed to prove these elements of torture and the mere allegation of torture is not sufficient.
Regarding rape, Razzaq submitted that Prosecution must prove the elements of rape described under Article- 7(II) g (1) of the ICC Rome Statute beyond reasonable doubt. He alleged that the Prosecution failed to prove these elements and none of the rape victims (under Charge No 14, 16 and 17) gave testimony in support of these charges.
Regarding Charge No 19 for forced religious conversion, Razzaq argued that conversion does not fall under the category of “other inhuman acts” or “genocide” as alleged by the prosecution. He further argued that to prove forced conversion the prosecution must show that there was an application of force and that the accused had the necessary mens rea. He submitted that the testimony of prosecution witnesses 13 and 23 did not prove the elements of this crime. Additionally, citing to the decision in the Naletilić case (ICTY para 246-247), to fall under the meaning of “other inhuman act” the crime must be sufficiently similar in gravity to other offences listed as crimes against humanity. Razzaq argued that the Prosecution must adduce evidence to show that the victim had suffered harm i.e. mental or physical as a result of forced conversion in order to meet this burden, and furthermore the one and only reason behind “deportation” must be conversion if deportation is to arise to the level of a crime against humanity.
Regarding the alleged crime of persecution, Razzaq argued that the mens rea (required mental state) for persecution is higher than for crimes against humanity in general, but lower than that required for genocide. He cited Kuperskic (ICTY, )para 632-636. Sayedee is charged with persecution under Charges 2, 3, 6, 7, 8, 9, 10, 11 and 14. Razzaq alleged that the use of this crime was done at the suggestion of foreign legal expert Ahmed Ziauddin (he cited one of the leaked email conversations between the former chairman and Ziauddin dated 3 October 2012). He further alleged that the Prosecution failed to prove the elements of the crime of persecution and that therefore, these 9 charges were not proven.
Regarding Charges No 2, 12 and 15, Razzaq submitted that the charge 12 and 15 are same. He argued that genocide as defined under section 3(2) (c )of the ICT Act 1973 is almost identical to Article 2 of the Genocide Convention 1948. He argued that ICT Act 1973 replaced the words ‘as such’ (used in the Genocide Convention) with ‘such as’, and that “as such” describes a conclusive list ( Niyitegeka Appeal Judgment- ICTR, para 53) and “such as” indicates that the list is not exhaustive. He argued that the ICT Act of 1973 also added a new group against whom genocide may be committed, namely “political” group or party. Razzaq argued that no international or domestic tribunal recognizes targeting of groups who share political beliefs as grounds for genocide.
Regarding Charge 14, Razzaq submitted that the Prosecution must prove Sayedee had knowledge of the crime his followers were going to commit prior to its commission, and that he must have had authority over others as a Razakar in order to be responsible for the failure to prevent the commission of atrocities by those persons. The Defense argued that the Prosecution failed to prove that Sayedee was in fact a Razakar.
At this point Justice Jahangir Hossain raised that the point that an “omission” can be a crime under criminal law, and asked what the outcome should be if such an omission was found. In reply Razzaq stated that if the accused had no authority to prevent the commission of the crime, then his failure ot act is not an omission because it is not a failure of his duty
Razzaq argued that to prove any crime the Prosecution must prove the elements of the crimes. Specifically, he argued that the Prosecution must prove that the alleged crimes committed were part of a “systematic or widespread attack” upon the civilian population. He further asserted that the accused must have participated with knowledge of the crime being part of such an attack. Additionally, the Defense argued that the Tribunal could not charge an accused as both a principle and accessory concurrently, and cited to the case Prosecutor vs William Samoei Ruto and others (2011) ICC para 36. He alleged that in Charges No 5, 7, 14, 16 and 18 the Tribunal charged Sayedee concurrently as a principle and accessory.