Today the Tribunal heard matters in the following cases:

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

The Defense began its presentation of Closing Arguments in the Kamaruzzaman case. Counsel addressed details pertaining to Charge 1 and the allegations of Kamaruzzaman’s involvement in the torture and killing of Bodiuzzaman. The Defense identified and outlined the substantial contradictions between the testimonies of Prosecution witnesses 4 and 6, both of whom provided hearsay evidence. Additionally the Defense highlighted inconsistencies between each witness’ courtroom testimony and their previous statements to the Investigation Officer. The Defense argued that in order for hearsay evidence to be viewed as credible and reliable it should be consistent and supported by circumstantial evidence. The contradictions and inconsistencies in the Prosecution’s case for Charge 1 give rise to substantial doubt as to the guilt of the Accused.

Abdur Razzaq, the senior Defense counsel for the Accused, also addressed legal questions arising from the Prosecution’s case including admissibility and probative value of hearsay evidence in the absence of corroborative evidence, whether the statement of one hearsay witness can satisfactorily corroborate another, and whether corroboration is required. In the course of their submissions the Defense referred to and analysed judicial precedents from the ICTY and the ICTR and rebutted arguments made by Prosecutor Tureen Afroz on 31 March 2013. The Defense also referred to the text Archbold: International Criminal Courts Practice, Procedure and Evidence and some domestic cases.

The Defense stated that their final arguments would take a total of four days. They requested that the court accommodate their proposed timeline.

Charge 1
Evidentiary and Factual Arguments
The first Charge against Kamaruzzaman pertains to the killing of Badiuzzaman. The charge is supported only by the testimony of Prosecution witnesses 4, Fakir Abdul Mannan, and 6, Dr Md Hasanuzzaman, both of whom are hearsay witnesses.  The Defense argued that there are fundamental discrepancies between the two witnesses’ testimonies and the findings of the Investigation Officer. The Defense stated that these discrepancies and inconsistencies go to the very root of the Prosecution’s case. The testimony of these witnesses has been used to establish the Prosecution’s allegations about the purpose of Badiuzzaman’s visit to Ahammed Member’s House at Badiu where he was abducted, the presence of Pakistan Army at the time of abduction, Ahammed Member’s position during the Liberation War, the mode of Badiuzzaman’s arrest, and the identification of Kamaruzzaman.

Prosecution witness 4 testified that Badiuzzaman took shelter in Ahammed Member’s house because he could not go to India. To the contrary, Prosecution witness 6 stated that Badiuzzaman had already been to India once and that he went to Ahammed Member’s house on 29^th June 1971 for reconnaissance purposes. The Defense submitted that it was unlikely that Badiuzzaman would visit the house of his brother’s father-in-law when his brother did not accompany him. The Defense alleged that this story has been fabricated and noted that if true, Badiuzzaman would have had to cross three army check posts in order to reach the house, thereby increasing his risk. The Defense also submitted that both witness’ versions of events contradict the findings of Investigation Officer. The Investigating Officer testified that Badiuzzaman did not go to Ahammed Member’s house at all, but rather went to one Makbul’s house.

The judges interjected that the witness may have gone to the house of his brother’s father-in-law in order to find safety and that these claims are not entirely unbelievable.

The Defense stated that further contradictions arise in relation to the alleged political affiliation of Ahammmed Member during the period of the Liberation War, 1971.  According to the testimony of Prosecution witness 4, he was a member of Muslim League who opposed the Liberation War and was also a member of the Peace Committee. Prosecution witness 6, who is the son-in-law of Ahammed Member, said that he did not know whether his father-in-law was a Muslim League leader or not but acknowledged that he was a very influential and renowned person. He also said that his father-in-law was not the Chairman of Peace Committee and was neither in favor nor against the Liberation War. The Defense also pointed out that the two witnesses also gave opposite statements in regards to whether Ahammadnagar School was set up by Ahammad Member or by local people.

The Defense next drew the attention of the Tribunal to contradictions pertaining to the mode of arrest of the victim Badiuzzaman. Prosecution witness 4 said that Badiuzzaman was abducted by Al-Badr and the Pakistani Army, indicating that there was a joint military raid. To the contrary, Prosecution witness 6 made no mention of the presence of the Pakistani Army. Instead he alleged that Badiuzzaman was deceived by the Accused and Al-Badr members who falsely presented themselves as freedom fighters and apprehended the victim. The Defense expressed doubt as to how believable this allegation could be given the Prosecution’s arguments that Kamaruzzaman was a well-known member of Al-Badr.

The Defense then turned to the role of witness testimony in the identification of Kamaruzzaman. The Defense also submitted that the persisting question of whether the original declarant of hearsay statements actually witnessed the event makes such statements less credible. Prosecution witness 4 testified that Sayedur Rahman did not actually see Kamaruzzaman, that it was actually his brother Makbul Hossain who identified the Accused. Thus Sayedur heard about Kamaruzzaman’s involvement from Makbul. To the contrary, Prosecution witness 6 testified that Makbul Hossain failed to identify the Accused and instead asked him and others to sit and even served them light snacks and returned a magazine full of bullets that they had left behind previously. Prosecution witness 6 claimed that Sayedur Rahman identified Kamaruzzaman and realized that he and his companions were not freedom fighters but members of Al-Badr. The Defense submitted that these contradictory accounts of the incident give rise to significant doubts about the prosecution’s case and significantly affects the reliability and credibility of the two witnesses.

To further their assertions, the Defense next enumerated numerous internal inconsistencies between the witnesses’ courtroom testimony and their original statements to the Investigating Officer.  Prosecution witness 4 testified in court that he heard about the incident when Sayedur Rahman informed the leaders of the Awami League about the occurrences. However, he previously told the Investigating Officer that Sayedur Rahman had told him about the incident directly. He also told the Investigating Officer that Sayedur Rahman had recognized Kamaruzzaman when he allegedly took Badiuzzaman away, which contradicts his courtroom testimony as discussed above.

The Defense also pointed out that Prosecution witness 4 made many new statements during his courtroom testimony that were not part of his original statement to the Investigating Officer. The Defense argued that this tends to show that the contents of the witness’ testimony have been fabricated at the suggestion of the Prosecution. In particular, the Defense pointed out that the witness testified in court that Makbul had told Sayedur Rahman that he too was being taken away by the Al-Badr members at the time of Badiuzzaman’s abduction, but escaped by pretending to need to relieve himself and hiding in the bushes. The counsel submitted that this statement is a major event and it is implausible to believe that the witness forgot to mention it while giving his statement to the Investigating Officer. The Defense also noted that some portions of Prosecution witness 4’s testimony are inconsistent with the Charge Framing Order, which alleges that the Pakistani Army was present during the abduction.

The Defense then highlighted similar internal inconsistencies between Prosecution witness 6’s testimony and his original statements to the Investigating Officer. During his cross-examination on 6 September 2012 the witness claimed that he was at his maternal grandfather’s house on 29^th June 1971, the alleged date of the incident. As the cross-examination continued he recanted and claimed he was at his own house when the killing took place and only later went to his grandfather’s house for safety on 1^st or 2^nd July. Even later in his cross-examination Prosecution witness 6 said that he went to Dhaka out of fear after his brother was killed, again contradicting his prior statements.

Additionally the Defense pointed out that Prosecution witness 6 was inconsistent in identifying the source of his hearsay information. During his examination-in-chief the witness stated that he found out about the incident after the Liberation War when he visited the house of his in-laws and talked to his uncle-in-law Makbul Hossain, Sayedur Rahman and brother-in-law Jamshed Ali. However during cross-examination he changed his story and claimed that Jamshed Ali visited his house with the news of the killing the day after the incident. The Defense sought to further undermin the credibility of the witness by pointing out that he claimed to have gone to a court in Sherpur to follow up on the case regarding his brother’s killing, whereas the counsel submitted that there was no court in Sherpur in 1972 and as Prosecution witnesses 14 and 18 both testified that Sherpur was neither a district nor a sub-division but only a mere Police Station.

Legal Arguments
Finally, the Defense addressed issues of law relevant to the Charges. First they addressed the value of hearsay testimony.

Hearsay Evidence
The Defense noted that Prosecution witnesses 4 and 6 are both hearsay witnesses. Although they acknowledged that hearsay evidence has been deemed admissible in the proceedings of the ICT, the Defense argued that its probative value depends on whether it can be corroborated.  The Defense cited to the decision of the ICTY in the case Prosecutor v. Limaj, Oral Ruling of 18 November, 2004, pages. 447-449; ICTR decisions Prosecutor v. Kajelijeli, Trial Chamber Judgment, 1 December, 2003, paras 45 & 401 and Prosecutor v. Akayesu, Trial Chamber Judgment, 2 September, 1998, Paras-136 & 266; and the ICC’s decisions in Prosecutor v. Lubanga  (ICC-01/04-01/06-803-tEN) para 106 and Prosecutor v. Katanga & Ngudjolo (ICC-01/04-01/07-717) para 118-120, 138 & 140. The Defense argued that unattributed hearsay cannot be used to corroborate other evidence.  He rebutted the submission made by Prosecutor Tureen Afroz on 31 March, and stated that it is incorrect to claim that no corroboration is required even for hearsay evidence. Furthermore the Defense argued that the cases cited by the Prosecution, including the ICTY Trial Chamber’s decision in Simic, Tadic & Zaric (2003) does not support the Prosecution’s assertions. Instead, the Defense claimed that these cases demonstrate that corroboration is required, but that it does not always have to come from direct evidence. Circumstantial evidence may also suffice as effective corroboration.

Finally, the Defense referred to the text “Archbold: International Criminal Courts Practice, Procedure and Evidence” and cited the ICC’s recent decision in Prosecutor v Ruto and Sang (2012), submitting that one hearsay statement cannot be used to corroborate another hearsay statement. In the case at hand, the testimony of Prosecution witnesses 4 and 6, being based on hearsay, cannot be used to corroborate one another and therefore do not have any probative value in the absence of other corroborating evidence.

The Defense concluded for the day by referring to Bangladeshi cases reported in 7 BLC 742 and 7 BLC 342, stating that the consequence of not mentioning material facts to the Investigating Officer at the time of investigation may be fatal for the Prosecution’s case. They claimed that this has occurred in the Kamaruzzaman case.

The Defense is scheduled to continue their Closing Arguments tomorrow.