31 March 2013: ICT-2 Daily Summary – Kamaruzzaman Prosecution Closing Arguments

Today the Tribunal heard matters in the following cases:

  1. Chief Prosecutor vs. Muhammad Kamaruzzaman – Prosecution Closing Arguments

Because the Tribunal Judges were attending the oath taking ceremony for the newly appointed Judges of the Appellate Division for the Supreme Court of Bangladesh, proceedings did not begin until 12pm. The Chairman of Tribunal 2, Justice Obaidul Hossain, was absent and Justice Mozibur Rahman Miah chaired in his place.

The Judges allocated an hour to Prosecutor Tureen Afroz to make submissions pertaining to the points of law relevant to the case against Kamaruzzaman. She addressed five legal issues: the admissibility and probative value of hearsay evidence, the definition of “other inhuman acts” constituting Crimes Against Humanity, the doctrine of the “Old Evidence Rule,” the probative value of testimony from a single eye-witness, and the liability of the Accused under the doctrine of Superior Responsibility. In her submission, Prosecutor Afroz cited to decisions from the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Court (ICC), which form part of Customary International Law. After these arguments Prosecutor Haider Ali closed the prosecution’s case after addressing points of domestic law and procedure.

Admissibility and Probative Value of Hearsay Evidence:
Charge 1 against Kamaruzzaman pertains to the killing of Badiuzzaman. The Prosecution noted that the allegations are supported only by the testimonies of Prosecution witnesses 4 and 6, both of whom are hearsay witnesses. Charge 7, which pertains to the killing of six unarmed civilians, is similarly solely dependent upon hearsay statements given by Prosecution witnesses 1 and 15. The Prosecution acknowledged that they have submitted hearsay statements to prove the guilt of the Accused on other charges as well.

Prosecutor Afroz stated that because hearsay evidence is less reliable, the question of its admissibility has been the subject of much debate in national and international legal doctrine. She noted that the Bangladeshi Evidence Act of 1872 limits the situations in which hearsay evidence is admissible. However, given the fact that the Bangladeshi Evidence Act of 1872 does not apply to proceedings of the International Crimes Tribunal Bangladesh, the issue of the admissibility and probative value of hearsay evidence remains indistinct. In order to determine how the Tribunal should deal with hearsay evidence, the Prosecution submitted arguments on three aspects: (a) whether hearsay evidence should be admitted, (b) where admitted, whether hearsay evidence needs to be corroborated by other evidence and (c) how the Tribunal should assess hearsay evidence.

Should Hearsay Evidence be Admissible
Ms Tureen Afroz submitted hearsay evidence is not inadmissible per se, even in situations when the source of the evidence cannot be examined and/or the evidence is not corroborated by direct evidence.  Prosecutor Afroz cited to the decisions of ICTY Trial Chamber in Tadic (1996), Blaskic (1998) and Simic, Tadic & Zaric (2003), as well as in the decisions of ICTR Trial Chamber in Kajelijeli (2003), Kamuhanda (2004), Rwamakuba (2006) and Muvunyi (2006) in support of this argument. In light of these decisions, the Prosecution claimed that it is settled in international jurisprudence that hearsay evidence may be admissible.  Furthermore, the Prosecution argued that the ICTY Appeals Chamber in Aleksovski (2000) and Kordic & Cerkez (2004), as well as the ICTR Appeals Chamber in Rutaganda (2003) held that the Trial Chambers have broad discretion in determining hearsay evidence to be admissible. Prosecutor Afroz argued that because Tribunal 2 has already exercised such discretion to admit hearsay evidence in the Abdul Quader Molla (2013) case, Tribunal 1 should follow that precedent in considering hearsay statements against Muhammad Kamaruzzaman.

Tureen also cited precedents of domestic cases of Bangladesh in which the High Court Division admitted hearsay evidence. These include the decisions in Abul Kashem v State, 42 DLR 378, S M Qamruzzaman V State, 33 DLR 156 and Shafiullah v State, 1985 BLD (HC) 129(a).

Where Admitted, Must Hearsay Evidence Be Corroborated?
The Prosecution argued that once hearsay evidence is deemed admissible, it may be sufficient on its own to prove the guilt of the Accused and does not require corroboration by direct evidence. Prosecutor Afroz stated that this is supported by the decision of the ICTY in the Trial Chamber’s decision in Simic, Tadic & Zaric (2003).

Furthermore, the Prosecution stated that the ICC Pre-Trial Chamber in its recent decision Ruto (2012) held that anonymous hearsay evidence alone may be sufficient to prove a material fact. They also asserted that the ICC Pre-Trial Chamber decision in Lubanga (2007) and Katanga (2008), and the European Court of Human Rights decision in Doorson (1996) confirms that anonymous hearsay evidence can be used to corroborate other evidence. The Prosecution argued that no corroboration by direct evidence should be required to prove Charges 1 and 7 and submitted that while the Prosecution is relying on the hearsay statements of Prosecution witnesses 1, 4, 6 and 15, they are not anonymous hearsay statements. Prosecutor Afroz said that the witnesses revealed the specific names of the original declarant/witness and appeared in court for cross-examination by the defense.

How Should Hearsay Evidence Be Addressed?
The Prosecutor cited to the ICTR Trial Chamber’s decision in Kajelijeli (2003) and the ICTY Trial Chamber’s decision in Halilovic (2005) and Blagojovic & Jokic (2005) whereby it was held that in order to assess hearsay evidence, two important criteria should be considered: firstly, the credibility of the evidence and secondly, the relevance of the evidence. Prosecutor Afroz submitted that the hearsay evidence provided by Prosecution witnesses 1, 4, 6 and 15 is both credible and relevant and thus proves Charges 1 and 7 against Mr. Kamaruzzaman beyond a reasonable doubt.

The judge pointed out that there were discrepancies between the testimony of Prosecution witness 15 and the Prosecutions case, highlighting that the incident had allegedly taken place in Ramadan when the witness was detained at the camp and therefore it would not have been possible for him to witness the incident. The Judge stated that this cast doubt on the credibility of Prosecution witness 15. 

In response, the Prosecution asserted that the Tribunal may convict the Accused based on the testimony of one hearsay witness alone if it finds the testimony of witness 15 to be unreliable.

“Other Inhumane Acts” Constituting Crimes Against Humanity
Charge 2 against Kamaruzzaman concerns allegations of inhumane acts and torture against Mr Syed Abdul Hannan, the then principal of Sherpur College. Even though Section 3(2)(a) of the International Crimes (Tribunals) Act 1973 refers to “other inhumane acts” as a Crime against Humanity, the term is undefined in the 1973 Act itself. The Prosecution then sought to (a) provide a definition of “other inhumane acts” amounting to a crime against humanity and (b) assess whether the acts committed against Syed Abdul Hannan meet that standard.

The Prosecution sought to borrow the definition of “other inhumane acts” from international jurisprudence. Prosecutor Afroz submitted that although the definition of Crimes Against Humanity was initially limited to acts committed during an armed conflict, the definition was later extended to include crimes during times of peace as well. Therefore she argued, the definition of the offense has changed significantly from time of the Nuremburg Charter to the Rome Statute.  The Prosecution submitted that the definition therefore should be derived from humanitarian law and principles of human rights law as laid down in the Universal Declaration on Human Rights of 1948 (UDHR), the International Covenant on Economic, Social and Cultural Rights, 1996 (ICESCR). Additionally, Prosecutor Afroz noted that “other inhumane acts” have been specifically addressed as “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health” in Article 7(1)(k) of the Rome Statute of the International Criminal Court, 1998.

The Prosecution submitted that this definition accords the court broad discretion to determine whether a particular act constitutes an inhumane act. They listed a number of acts determined to be within the confines of the term: including certain types of sexual violence (Akayesu (ICTR Trial Chamber), September 2, 2001, para. 688 and Furundzija (ICTY Trial Chamber), December 10. 1998, para. 209,) forcible transfer of people (Kupreskic (ICTY Trial Chamber), January 14, 2000, paras. 565-566; Krstic (ICTY Trial Chamber), August 2, 2001, para. 523; Brdjanin (ICTY Trial Chamber), September 1, 2004, para. 544 629-630];  desecration of corpses (Niyitigeka (ICTR Trial Chamber), May 16, 2003, paras. 462-463 & 465); attempted murder (Vasiljevic (ICTY Trial Chamber), November 29, 2002, para. 239), extensive destruction of property (Saddam Hossain Trial (Iraqi High Tribunal) referred to in Terhi Jyrkkio, ‘Other Inhumane Acts as Crimes Against Humanity,’ 1 Helsinki Law Review 183, (2011) at p. 202-203) and forced marriage (AFRC (Special Court of Sierra Leone Trial Chamber), February 22, 2008, paras. 186 & 195).

Whether the Acts Committed against Mr. Syed Abdul Hannan Falls within the Definition of “Other Inhumane Acts”
The Prosecution submitted that the acts committed against Syed Abdul Hannan violated Article 5 and Article 12 of the Universal Declaration on Human Rights of 1948 (UDHR). Article 5 states that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” and Article 12 states that “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks”.

Prosecutor Afroz argued that the act committed against Syed Abdul Hannan constitutes a serious attack on his “human dignity,” as derived from the decision in Vasiljevic (ICTY Trial Chamber), November 29, 2002, para. 239). Furthermore, the Prosecutor stated that the act was also offensive to members of Syed Abdul Hannan’s community as a whole, and could therefore be categorized as “Third Party Mental Suffering Syndrome” (as established in Kayishema (ICTR Trial Chamber), May 21, 1999, para. 153; Niyitigeka (ICTR Trial Chamber), May 16, 2003, paras. 462-463, 465; Kamuhanda (ICTR Trial Chamber), January 22, 2004, para. 718; and Kajelijeli (ICTR Trial Chamber), December 1, 2003, para. 933]. To support her submission, Ms. Afroz also cited verses from the Quran, the Holy Bible and also referred to Hindu and Buddhist Scriptures to show the importance of education in Bangladeshi society. Therefore she submitted that attacking and shaving the hair of the head of an educational institution was truly an inhumane act given the socio-religious culture of Bangladesh.

Doctrine of “Old Evidence Rule”
The Prosecution next presented arguments on the “Old Evidence Rule.” Prosecutor Afroz admitted that many discrepancies have arisen in the oral testimony given by witnesses. These include discrepancies in the dates, circumstances surrounding an incident, the number of victims and other miscellaneous inconsistencies. The Prosecution submitted that it is not always reasonable to expect the witnesses to recall every detail with precision, and argued that this has been recognized by the ICTR Trial Chamber in Nyiramasuhuko (2011), para 179 and the ICTY Appeals Chamber in Kupreskic (2001), para 35. Prosecutor Afroz further submitted that the recollection of the witnesses may have been adversely affected by stress-related disorders caused by the incident, as recognized by the ICTR Trial Chamber in Kamuhanda (2004), para 34. She acknowledged that discrepancies may arise because of the lapse of forty years between the incident and the time of testimony, the possible distortion of a witness’ individual recollection due to the impact of collective memory (as dealt with by the Special Panels for Serious Crimes in East Timor in the Tacaqui decision (2004), para-42), and associated cultural factors. However, she argued that the Tribunal should nevertheless consider the fundamental features to resolve the “Old Evidence Issues,” as suggested by the ICTY Appeals Chamber in Celebici (2001); para 485 & 496.

Upon being asked by the Judges how the Prosecution would explain the various discrepancies and inconsistencies in the testimonies of the prosecution witnesses, Prosecutor Afroz submitted that they should be overlooked and dealt with in a lenient fashion in consideration of the “Old Evidence Rule,” especially because forty years have already elapsed and may have somewhat affected the ability to remember and recall the events accurately.

Evidence of Single Eye-Witness
The Prosecution submitted that a conviction can issue in reliance on the testimony of a single eye-witness, and thus corroborating evidence is not required under Customary International Law and should not be required by the Tribunal. Prosecutor Afroz referred to the decision of ICTY Trial Chamber in Musema (2000), whereby it was held that the court may rule on the basis of a single witness’ testimony if it is of the opinion that the testimony is both relevant and credible.

Superior Responsibility of the Accused
The Prosecution then turned to the concept of Superior Responsibility which they argued is derived from the military doctrine of Command Responsibility. Prosecutor Afroz submitted that under the Doctrine of Superior Responsibility it is not necessary to show that Kamaruzzaman ordered the commission of Crimes Against Human, but means he may be liable where he as a leader failed to control his subordinates, prevent the commission of crimes or punish perpetrators under his command. The Doctrine is thus based on the the duty to meet the minimum standard of responsibility for leaders and commanders with respect to the conduct of their subordinates. The Prosecution argued that Kamaruzzaman, as the leader of Al-Badr in his region, failed to discipline and control his subordinates, and failed to prevent them from committing crimes.

Due to limitation of time, the Prosecution summarily referred to historical landmark cases applying the Doctrine of Superior Responsibility. The counsel stated that from the first recorded war crimes trial of Peter Von Hagenbach Trial (1474) for failing to prevent the atrocities committed by his men during the Swiss-Burgundian War, to the post World War-I Leipzig Trial (1921), and the post World War-II Nuremburg Trials (1945-946) and Yamashita Trial (1945, the Doctrine of  Superior Responsibility has been widely recognized. Additionally, the Prosecution argued that the Doctrine has now been expressly incorporated to international legal instruments, including Article 86 and 87(1) of the Additional Protocol I of the Geneva Conventions of 1949, Article 7(3) of ICTY Statute, Article 6(3) of ICTR Statute, and Article 28 of Rome Statute.  

Finally, the Prosecutor Afroz referred the Tribunal to Section 4(2) of the International Crimes (Tribunals) Act of 1973, which as per her submission imposes a standard of strict liability on commanders and superior officers with no requirement of knowledge. Therefore she stated that the Tribunal only needs to determine whether perpetrators committed crimes specified in Section 3 of the 1973 Act, and if so, whether Kamaruzzaman bears “superior responsibility” for the commission of such crimes. Prosecutor Afroz argued the Tribunal should answer both questions affirmatively, asserting that a superior-subordinate relationship existed between Kamaruzzaman and members of Mymensingh and Sherpur area Al-Badr group during 1971.

Prosecutor Afroz concluded that Al-Badr members were the wolves during the Liberation War and Kamaruzzaman acted as the wolf king who specifically targeted unarmed innocent civilians.

Further Prosecution Arguments
Kamaruzzaman’s Role
Following Prosecutor Afroz’s submissions, Prosecutor Haider Ali concluded the Prosecution’s Closing Arguments. He submitted that Kamaruzzaman received the Pakistani Army upon their arrival in Mymensingh and was a front tier leader of Al-Badr. In outlining his position as a leader and the extent of his participation, the prosecutor Haider Ali claimed that all local operations of the Pakistan Army in that area were conducted in consultation with the Accused.

Relationship between Section 19 and Section 8(9) of the ICT Act of 1973
In the second part of his argument, Prosecutor Haider Ali tried to show the connection between Section 19 and Section 8(9) of the 1973 Act. He conceded that although newspapers are not admissible in regular domestic proceedings, they are admissible in the proceedings of the ICT because Section 19(1) states that the Tribunal “shall not be bound by technical rules of evidence” and that it “may admit any evidence, including reports and photographs published in newspapers, periodicals and magazines, films and tape-recordings and other materials”.  The counsel asserted that there is a nexus between Section 8(9) and Section 19 in that any evidence presented before the court must be deemed to have been submitted in accordance with the 1973 Act and therefore is to be considered fit and proper. Section 8(9) states that “any investigation done into the crimes specified in Section 3 shall be deemed to have been done under the provision of this Act.”

Liability under Section 4(2) in All Charges
Finally, the Prosecution cited to provisions from the Rules of Procedure for Tribunal 1 and submitted that even though the accused has not been charged under Section 4(2) in a numbe of the Charges against him, the Tribunal may still find him liable under Section 4(2) in those charges for Superior/Command Responsibility in addition to finding the accused individually liable.

Prosecutor Haider Ali concluded his submission by saying that the Prosecution has been able to prove the case beyond the slightest doubt and therefore Muhammad Kamaruzzaman should be found guilty on all counts and should face the highest penalty of death sentence under Section 20(2) of the 1973 Act.

Administrative and Procedural matters
After the end of the Prosecution’s Closing Arguments, Mr Abdur Razzaq, the senior Defense counsel, appeared before the court and requested an adjournment for eight days before beginning the Defense’s Closing Arguments. Mr Razzaq, who is also acting as the senior Defense counsel for Gholam Azam, Nizami, Sayedee and Qader Molla stated that he has to attend the ongoing proceedings in Tribunal I as well as the Appellate Division and henceforth needs time to sum up the instant case. The presiding Judge asked the Counsel to begin his submissions on 2 April 2013, but assured him that the court will accommodate his schedule so far as is practicable.