1 April 2013: ICT-1 Daily Summary

Today the Tribunal heard matters in the following cases:

  1. Chief Prosecutor vs. Motiur Rahman Nizami –cross-examination of PW 3
  2. Chief Prosecutor vs. Salauddin Qader Chowdhury – examination of PW 24
  3. Chief Prosecutor vs. Gholam Azam –Defense Closing Arguments

Defense Counsel for  Motiur Rahman Nizami concluded their cross-examination of Prosecution witness- 3, Rustom Ali Mollah. The Tribunal scheduled the next hearing of the case for 15 April 2013.  In the case against Salauddin Qader Chowdhury the Prosecution conducted the examination-in-chief of Prosecution witness 24, Babul Chakraborty. Thereafter, Defense counsel cross-examined the witness. After the completion of the cross-examination the Tribunal adjourned the proceedings in the Chowdhury case until 4 April 2013.  In the afternoon the Tribunal heard Abdur Razzaq, senior Defense counsel for Gholam Azam, present the Defense’s Closing Arguments based on Charge 1 for conspiracy. The Tribunal then adjourned the Gholam Azam case until tomorrow, 2 April 2013.

Chief Prosecutor vs. Nizami
Cross-Examination of Prosecution Witness 3
The Defense cross-examined Rustom Ali Mollah, Prosecution witness 3. The witness testified that Tarek Khan Mojlish was 7 to 8 years younger than him. He said that Zohir Uddin Jalal is also younger than him but he could not specify by how many years. Rustom testified that he crossed the Bosila river by himself, on his way to Vayaspur and Rampur. He traveled alone and met Zohir Uddin Jalal, a freedom fighter who went by the name Jalal. The witness said that he did not meet with any other freedom fighters before meeting with Jalal. Additionally, he claimed that he did not meet any other freedom fighters during the war. He testified that he continues to live in the same house that he occupied during the Liberation War.

Rustom said that he understands the term ‘bunker’. He said that inside the boundary wall of the Physical Institute, the Pakistani Army, Al-Badr and Razakars made a bunker using sand bags. He said that in 1971 the Physical Institute was surrounded by boundary walls with two gates. He said only the main gate was open; the gate next to the hostel was closed. He testified that during the Liberation War Jalal did not go inside the camp. The witness testified that he had heard of Sahjahan Chowdhury but does not know him. He stated that Sahjahan Chowdhury’s house was behind the Physical Institute. He also said that Chandra Pal and Gopal’s house was next to the Physical Institute but that during the Liberation War they did not reside there.

Rustom testified that during the plane attack by the allied force he was inside the Physical Institute campus. He said he did not meet with Bichchu Jalal until the next day. He claimed that he did not know and did not talk with the persons who were tortured just 10 days before the beginning of the Liberation War. He said that in 1971 he joined the institute at MNSS as a security guard. He confirmed that he did not work as a cook.

Rustom denied that he previously gave interviews but did not state that he had seen Motiur Rahman Nizami inside the Physical Institute. He said he did not know whether his father had alleged that he saw Motiur Rahman Nizami inside the Physical institute when he was interviewed.

The Defense drew the Tribunal’s attention to contradictions in the witness’ testimony. Rustom denied that he did not tell the Investigating Officer that women were raped inside the Physical Institute. He also denied that he did not tell the Investigating Officer about his meetings with Bichuchu Jalal. The Defense asked the witness when and where he first saw Nizami after the Liberation War. Rustom responded that after the Liberation War he did not see Nizami face to face and did not heard about him. He denied that he is lying about seeing Motiur Rahman Nizami at the gate of the Physical Institute. He denied that he is a drug-addicted person. He denied to give false testimony. He also denied that he is colluding with Jalal to give false testimony against Nizami in order to obtain a certificate stating that he was a freedom fighter.

Chief Prosecutor vs. Chowdhury
Prosecution Examination-in-Chief
The Prosecution conducted its examination-in-chief of Prosecution witness 24, Babul Chakraborty. The witness testified that in 1971 he was 20 years old. He claimed that from April to 14 December 1971 the Pakistani Army, with the help of Muslim League leader Fazlul Qader Chowdhury, his son Salauddin Qader Chowdhury and the Razakars, carried out genocide in his area. He testified that in his area  there were many Hindus and that during the Liberation War a large number of people from Mohra and Kalurghat areas took shelter in their village.

Babul testified that on 20th April 1971 Salauddin Qader Chowdhury, with the help of Pakistani Army, shot and killed 52 people who were trying to hide in the bushes and the paddy field near Shakpura Primary School. Babul testified that on that day they (did not specify who) also killed his father, Manmohan Chakrabarty, after dragging him out of their home. He testified that Bimu Chowdhury, Gorango Chowdhury, Dibesh Chowdhury, Dhinandra Lal Chowdhury, Monmohon Chakrabarty, Babu Sukendra Bikash Nath, Dr Modhushudon Chowdhury, Krishno Chowdhury, Nikunjo Chowdhury, Orbindo Roy, Dhononjoy Chowdhury and many more were also killed. He testified that the dead were buried in a mass grave. Babul stated that during the Liberation War about 300-350 people were killed in his area. He testified that there is a monument near the Shakpura Primary School where the names of 76 victims have been written. Babul identified Salauddin Qader Chowdhury in the dock.

Defense Cross-Examination of Prosecution Witness 24
On cross-examination Babul said that he does not know whether he named Salauddin Qader Chowdhury or Fuzlul Qader Chowdhury in his interview with the Investigating Officer. Additionally, he said he does not remember filing a case (no 49) on 28 February 1972 for the killing of his father. He said that the case was filed by villagers in his area. Babul also did not remember previously alleged that his father was killed on 16 May 1971. He did not know whether Salauddin Qader Chowdhury and Fazlul Qader Chowdhury were accused in the previous case. Babul said that he knows Nikunjo Bihari Chowdhury, Biduith Kanti Chowdhury, Shubho Mala and Bojendro Lal Chowdhury but is not acquainted with Suresh Nath and Onurag Borua. He admitted that they jointly filed a case alleging that genocide was carried out in Shakpura during 1971. He did not know whether Salauddin Qader Chowdhury and Fazlul Qader Chowdhury were accused of these cases. He denied being a member of Hindu, Buddha, and Christian Oikho Parishad. He said he did not know whether Salauddin Qader Chowdhury campaigned for the Ershad Ullah in the last election. Babul also denied providing false testimony at the suggestion of Mohiuddin Khan Badal and Hindu, Buddha, and Christian Oikho Parishad.

Chief Prosecutor vs. Gholam Azam
Description of the Accused
Previously the Tribunal 1 Chairman asked Razzaq to specify which parts of the Charge Framing Order’s description of the Accused the Defense contests. Abdur Razzaq submitted that Gholam Azam was born in Dhaka He matriculated at Dhaka University and ultimately obtained his Masters degree in Political Science. The Defense stated that in the Dhaka University elections Gholam Azam was elected as a General Secretary. The Defense contested the Prosecution’s claim that under Gholam Azam’s leadership all the leaders and workers of the Jamaat-e-Islami and its student wing, Islami Chatra Shangha, opposed the liberation movement. The Defense opposed the assertion that Jamaat-e-Islami was a auxiliary force under the Pakistani Army and that as Amir of Jamaat-e-Islami Gholam Azam controlled the organizational framework of the Razakars, Al-Badr, Al-Shams etc. The Defense acknowledged that Gholam Azam was involved with the Peace Committee but stated that was not a district level member. The Defense denied that Gholam Azam formed the ‘Purbo Pakistan Punoruddhar Committee’ (East Pakistan Restoration Committee) and claimed that the Restoration Committee was formed by Ali Mohammad Abbas and Azhar.

The Defense also denied that Gholam Azam tried to incite sentiments against an independent Bangladesh in the Islamic countries of the Middle East and that he campaigned internationally against international recognition of Bangladesh as an independent and sovereign state. The Defense denied that Gholam Azam published a weekly newspaper named ‘Shonar Bangla’ but he admitted the existence of the publication. The Defense admitted that Gholam Azam entered Bangladesh after the Liberation War with a Pakistani passport.

Charge No 1 (Conspiracy)
The Defense then began their arguments regarding Charge 1, identifying the elements of the alleged crimes and citing to the Genocide Convention and decisions of different international tribunals.

Defense counsel Abdur Razzaq compared section 3(2) of the ICT Act 1973 to the correlating article of International Criminal Tribunal for Rwanda’s statute. He submitted that the possibility of genocide being committed on the basis of political affiliation was not recognized under International Customary Law in 1971. In support of his arguments he cited ICTR case Nahimana (Appeals Chamber), 28 November 2007, para 492. The Defense stated that a person commits the crime of genocide if he commits any one of the acts enumerated in Article 2(2) of the Statute with intent to destroy, in whole or in part, a national, ethnic, racial or religious group. He submitted that Article 2 of the Genocide Convention did not considered political groups as a protected category. He further argued that abduction was not considered a crime against humanity under International Customary Law in 1971 and noted that Tribunal 2 had agreed with this argument in their judgment against Qader Molla. The Defense submitted that similarly, accusations of genocide based on political grouping should not be considered.

The Defense acknowleged that one could be guilty of conspiracy to commit genocide even if genocide were not committed. However, the Prosecution must show that there was agreement between two or more persons to commit the specific crime of genocide. The agreement is to be inferred from evidence and tshe action of the conspirator must be concerted or coordinated.

Regarding the mental state required for the commission of conspiracy to commit genocide, the Defense submitted that the individuals involved in the conspiratorial agreement must have had the intent to destroy in whole or in part a national, ethnic, racial or religious group. The mental state required is the same as that required to show actual commission of the crime of genocide. The Defense also submitted that this mental state must have formed prior to the commission of crime and the criminal acts must have been committed in furtherance of that intent. Citing to the ICTR case of Seromba (Appeals Chamber), 12 March 2008, para 175, the Defense noted that other Tribunals agree with the requirement of specific intent to destroy in whole or in part a protected group. He compared this case with the case against Gholam Azam and submitted that both of them were charged for conspiracy.

The Defense noted that in the Seromba case the Accused were acquitted except for one who pled guilty. The Defense acknowledged that international jurispudence accepts that genocidal intent may be proved by circumstantial evidence. However, the Defense asserted that it is necessary to establish the genocidal intent of the accused and that finding must be the only reasonable inference from the totality of the evidence. (Nahimana (Appeals Chamber), para 524.) They submitted that systematic targeting of victims on account of their membership of a protected group will show such intent. (Nchamihigo (Trial Chamber), November 12, 2008 para 331.) Razzaq submitted that in ICTR case of Bagilishema the Judges made their findings based on direct and circumstantial evidence, whereas in the present case no documentary or oral evidence has been presented showing such intent. Additionally, the Defense argued that neither the Formal Charge nor the Charge Framing Order specified whether he conspired to commit genocide or crimes against humanity. The Defense stated that the Prosecution must prove that Gholam Azam intended to destroy in whole or in part a specific group i.e. Bengalis or Hindu community, on a specific date, time and place. The Defense claimed that Gholam Azam’s case does not present these elements.

The Defense noted that the prosecution relied on Exhibit-33, 34, 52, 53,99 and 100 and prosecution witnesses-1, 2, 3 and 16, but failed to prove that Gholam Azam had the specific intent to destroy in whole or in part the Hindu or Bengali community. Additionally the Defense claimed that the Prosecution failed to prove what was discussed or decided in the alleged meetings between Gholam Azam and Pakistani leaders. The exhibits and witness testimony only shows that a meeting between Gholam Azam and Tikka Khan took place and that it was proposed that a committee be formed with the purpose of restoring normalcy, obtaining the trust of the masses, and preserving the unity of Pakistan. The Defense reiterated that Gholam Azam’s use of the words “miscreants” and “separatists” referred to armed freedom fighters, and the word “intruders” referred to Indian armed forces. Finally, the Defense stated that the Prosecution could not prove that that Gholam Azam had referred to Bengalis or the Hindu community by using these terms.