Today the Tribunal heard matters in the following cases:
- Chief Prosecutor vs. Kamaruzzaman: Defense Closing Arguments
The day’s proceeding began with a Defense application for permission to meet with the Accused at the Kashimpur Jail. The Tribunal granted the application and allocated two hours (10:30 a.m. to 12:30 a.m.) on Sunday 7 April 2013 as the tentative date for two members of the Defense counsel to meet with Kamaruzzaman.
Following the defense application, senior Defense counsel for Kamaruzzaman, Abdur Razzaq, continued with the Closing Arguments on the legal issues pertaining to the charge of complicity in the commission of Crimes Against Humanity. The Defense also discussed the evidentiary aspects of Charge 3, which alleges Kamaruzzaman’s involvement the massacre and rape committed at Shohagpur. Razzaq also submitted arguments relating to Charge 2, which alleges the inhuman treatment of pro-liberation intellectual Syed Abdul Hannan. The Defense identified and outlined the substantial contradictions between the testimonies of the relevant witnesses and between their testimony and prior statements to the Investigating Officer.
Complicity in Commission of Crimes Against Humanity
The counsel cited the ICTY Trial Chamber case of Tadic (more specifically paragraph 688 and 689 of the judgment) to claim that the crime of complicity requires intent, defined as awareness of the act coupled with a conscious decision to participate by planning, instigating, ordering, committing, or otherwise aiding and abetting in the commission of a crime. Therefore the Prosecution must prove that the Accused participated in a way that contributed to the commission of the illegal act. The counsel further referred to the I.L.C. Draft Code’s legal findings in the Nuremberg cases whereby it concluded that an Accused may be found culpable if it is proved that he “intentionally commits such a crime” or, if he “knowingly aids, abets or otherwise assists, directly and substantially, in the commission of such a crime.”
The Defense argued no evidence has been given to show that Kamaruzzaman knowingly acted in a way that substantially and directly contributed to the commission of a crime. The Prosecution has failed to prove that Kamaruzzaman had the requisite intent of awareness or knowledge that crimes would be committed or were planned. Nothing has been presented to prove beyond a reasonable doubt that he assisted, instigated, facilitated, or aided and abetted the commission of the alleged offences.
The Defense then requested permission to address Charge 3 before addressing Charge 2. The Tribunal agreed and the Defense shifted their arguments to the evidentiary aspects of Charge 3, which alleges that Kamaruzaman was complicit in massacring and raping civilians in Shohagpur. Apart from Prosecution witness 13, Korfuly Bewa, all other witnesses provided hearsay evidence. Additionally, the Defense argued that Bewa’s testimony that Kamaruzzaman was present during the killing of her husband Rahimuddin is contradictory to her she original statement to the Investigating Officer when she claimed only to have heard about the incident.
The Defense submitted that there were seven sets of contradictions in the testimony of the witnesses. Prosecution witness 13 mentioned the use of truck whereas other prosecution witnesses did. Defense witness 1 stated that no transportation was available in the location and his claim was not contradicted by the prosecution in the cross-examination. Prosecution witness testified that she was raped by a Panjabi when she returned to the place of incident three days after the murder of her husband. On the other hand, Prosecution witness 12 Hafiza Bewa said that she and Prosecution witness 13 were both raped on the same day as the killing. The Defense submitted that this is a serious contradiction. Combined with other contradictions in the testimony of Prosecution witnesses 11, 12 and 13, the Defense argued these inconsistencies give rise to substantial doubt as to the Prosecution’s case against the accused.
The Defense further outlined inconsistencies between the testimony of the prosecution witnesses and their original statements to the Investigation Officer, as well as certain investigation findings that contradict the accounts of the witnesses. Prosecution witness 10 testified that Kamaruzzaman was the head of the Al-Badar and Rajakars, but did not originally make this statement to the Investigation Officer. Although the witness implicated Kamaruzzaman during his examination-in-chief, he made no mention of the Accused’s name implicating him during cross-examination. Prosecution witnesses 2 and 10 also did not mention the name of the Accused in their original statements to the Investigating Officer.
At the beginning of her testimony Prosecution witness 12 directly implicated the Accused, saying that Kamaruzzaman killed her husband. Immediately afterwards however, she said that she heard about the involvement of Kamaruzzaman. The Defense highlighted that these statements are completely contradictory and claimed that the tone of her entire testimony suggested that the witness was unsure about the involvement of the Accused.
Finally in relation to Charge 3 the Defense claimed that all the witnesses were kept together and hence their testimony was contaminated due to their communication. Moreover, the Defense submitted that the testimony of the three widows from Shohadpur Bidhoba Polli were so strikingly similar as to render them suspect and possibly fabricated by the Prosecution. Additionally the Defense noted that Prosecution witness 11 was not identified during the Investigation by the Prosecution and instead claimed that he came to give testimony by his own choice. The Defense implied that his testimony lacked sufficient credibility and could be motivated by a personal agenda.
The Defense then turned to Charge 2, which concerns the alleged inhuman treatment of pro-liberation intellectual Syed Abdul Hannan. Prosecution witness 2 Monowar Hossain Khan, also known as Mohon Munshi; Prosecution witness 3 Commander Johurul Hoque Munshi and Prosecution witness 14 Mujibur Rahman Khan Panu testified in support of the charge. Two of the witnesses claim to be eye-witnesses while the other provided hearsay evidence.
Prosecution witness 2 testified that he worked as a guard at the Rajakar camp at Suren Shaha’s house for four or five months, no more than seven months, and that he managed to escape a few days before independence on approximately 7th December 1971. This indicates that he probably began working at Suren Shaha’s house in the beginning of either May, July or August. The witness testified that 2 days after joining as a guard he heard that the Accused along with Kamran and few others were planning the attack on Principal Hannan. In contrast Prosecution witness 14 testified that the victim Abdul Hannan was taken to the camp in May 1971, while Prosecution witness 3 claimed that the incident took place in late September or early November.
The Defense submitted that there were also inconsistencies regarding the location where the victim’s head was shaved. They claimed that Prosecution witness 2 testified that it happened at Advocate Habib’s house, whereas Prosecution witness 14 said that it happened at Shuren Shaha’s house. Both witnesses are allegedly eye-witnesses, but the contradiction between the two gives rise to serious doubt about the Prosecution’s case. Further, Prosecution witness 2 said that the victim was taken back to his home in an Army Jeep whereas Prosecution witness 14 testified that the victim was required to walk throughout. Additionally, Prosecution witness 2 identified one Major Riaz as belonging to the Pakistani Army whereas Prosecution witness 3 identified one Major Ayub.
Finally, the Defense noted that Prosecution witness 2 had claimed that Prosecution witness 3, Jahurul Haque Munshi, was previously detained by Al-Badr member Kamran. However, Prosecution witness 3 himself testified that he was kicked out of the Army Camp by the Pakistani Army because they thought he was a beggar and therefore he was not detained. Prosecution witness 2 had also alleged that Prosecution witness 3 frequently visited the camp in Shuren Shaha’s house, whereas Prosecution witness 3 claimed to have have gone only once.
The Defense also pointed out inconsistencies in testimony about how Major Riaz was injured and how he was taken away from the location of the incident. Prosecution witness 2 claimed first that he was injured by a mine but later said that he was shot. He additionally claimed that the injured Major Riaz was taken away by a helicopter whereas Prosecution witness 3 stated that he was taken to Jamalpur by car.