15 April 2013: ICT-2 Daily Summary – Kamaruzzaman Defense Closing Arguments

Today the Tribunal heard matters in the following cases:

  1. Chief Prosecutor vs. Muhammed Kamaruzzaman: Final Defense Closing Arguments

The Defense for Muhammad Kamaruzzaman presented the last of their Closing Arguments for the case. Defense counsel Ehsan Siddique began the submission on behalf of the Accused, Kamaruzzaman. Senior Defense counsel Abdur Razzaq appeared and informed the Tribunal that he would resume his portion of the submission after the lunch break. The Defense highlighted five weaknesses of the Prosecution’s case: 

  •  Evidentiary weakness of Charges 2, 3, 4, 5, 6 and 7.
  • Contradictory witness testimony 
  • Inconsistencies between courtroom witness testimony and original statements to the Investigating Officer
  • Credibility issues
  • Failure to Fulfill Requirements of Doctrine of Command Responsibility

Defense counsel Ehsan began his submission with arguments on further legal points involved in Charge-2. He then addressed inconsistencies and contradictions in the witness testimony and documentary evidence submitted in support of Charges-3, 5, 6, and 7.

After lunch, Abdur Razzaq made some final closing remarks regarding Charge 2 before turning to Charge 4.  He identified and outlined the substantial contradictions between the testimonies of the relevant witnesses. The Defense argued that the Prosecution has primarily relied on oral evidence and did not produce a lot of documentary evidence. Razzaq stated that given numerous inconsistencies and contradictions, the testimony of the Prosecution witnesses leaves too much doubt for a conviction to be justified. The Defense claimed that Kamaruzzaman has been targeted solely because of his political affiliations.

Definition of “Other Inhumane Acts” as Crimes Against Humanity
Defense counsel Ehsan Siddique claimed that the charge of complicity in Charge-2 has not been proven beyond reasonable doubt. He submitted that the term “other inhumane acts” is not a catch-all category and cannot be used to include any type of action not otherwise enumerated within the statute. He cited to the ICTR Trial Chamber’s decision in The Prosecutor v Clement Kayishema and Obed Ruzindana, para 583, states that the category should not be utilized by the Prosecution as an all-encompassing, “catch-all” term.

The Defense added that in order for an act to fall within the category of “other inhumane acts,” it must be of the same gravity and seriousness as the acts enumerated as Crimes Against Humanity and will not include offenses of lesser gravity than murder, rape etc. (Blagojevic Trial judgment; para 626). Ehsan stated that the Prosecution witnesses themselves testified that Principal Hannan was neither stripped nor beaten. The Defense noted that they have truthfulness and accuracy of the witness testimony, but that even if they were to accept the testimony, the behavior described by the witnesses cannot be treated as equal to that of murder or rape and cannot be considered a Crime Against Humanity. While it is clear that shaving the head of a man and parading him around the town would amount to severe humiliation, it does not arise to the level of harm necessary to constitute a Crime Against Humanity.

The judges interjected and stated that the level of hurt and harm experienced by a victim of such an attack would vary according to the sensitivity and emotion of that person, as well as the context of the attack. The Defense replied that because the victim himself has not testified, the Tribunal cannot adopt a subjective standard but instead, must apply an objective test.

The Defense added that the acts alleged to be “other inhumane acts” must also have been carried out systematically and on a large scale in order for them to be considered Crimes Against Humanity. Ehsan referred to the ICTY Trial Chamber’s decision in Prosecutor v Kupreskic et al, IT-95-16-T, para 566; and Prosecutor v. Mladen Naletilic aka “Tuta”, Vinko Martinovic aka “Stela” (Trial Judgement), IT-98-34-T, para 247, for support of his arguments. He asserted that no evidence has been adduced to show that the humiliation of Principal Hanna was part of a systematic attack or widespread approach.

The final legal point of the Defense pertaining to Charge 2 was that “other inhumane acts” must be committed based on discriminatory grounds, such as political, racial, ethnic or religious discrimination. The Defense cited to Prosecutor v Alfred Musema, ICTR 96-13-T, Trial Chamber judgment, para 23. The Defense also cited the ICT’s previous decisions, Chief Prosecutor v Abul Kalam Azad, ICT-BD Case No. 05 of 2012 (para 79), and Chief Prosecutor v Abul Quader Molla, ICT-BD Case No. 02 of 2012 (para 131), in which the Tribunal upheld this requirement. The Defense asserted that the Prosecution provided no evidence of any discriminatory purpose behind the alleged attack on Principal Hannan, unlike other charges under crimes against humanity where the Prosecution presented specific evidence that the victims were targeted because they were freedom fighters or supported Bangladesh’s independence.

The Defense then rebutted the submissions of Prosecutor Afroz, who argued that the treatment of Principal Hannan constituted “other inhumane acts” as Crimes Against Humanity on three grounds: 1) it was an attack on the victim’s honor and reputation, 2) it was an attack on his dignity and 3) it caused third party mental suffering. The Defense stated that the first ground is not supported by judicial precedent.

The Defense argued that an attack on a victims honor and reputation has not been found to be sufficiently severe so as to constitute a Crime Against Humanity. The Prosecution’s position that an attack on dignity may arise to the level of a Crime Against Humanity is supported by judicial precedent, however, the specific act alleged in this case is not similar in terms of seriousness or gravity of harm and so cannot be held to constitute Crimes Against Humanity. The Defense compared the facts of the instant case with those in the ICTY case Prosecutor v Mitar Vasiljevic, in which forced detention was found to be a Crime Against Humanity. In that case the court noted that the victim begged for life (para 111) and suffered mental agony (para 112-114). Finally, Ehsan argued that the facts this case also do not support the allegation that the attack on Hannan caused third party mental harm. In the ICTR case of Prosecutor v. Niyitegeka, the issue of “Third Party Mental Harm” arose in the context of the extreme sexual mutilation of a dead woman in front of others belonging to the same ethnic background.

The Defense asserted that the treatment of Principal Hanna, if proven by the Prosecution, is not of a similar severity as the acts considered in Niyitegeka. For these three reasons the Defense argued that the Accused may not be found guilty of Crimes Against Humanity based on the treatment of Principal Hassan.

Charge 3:
The Defense then moved to address Charge 3, which alleges that Kamaruzzaman participated in, substantially facilitated and contributed to the commission of murder as a Crime Against Humanity, and that he was complicit in the commission of that crime. The Prosecution alleges that the Accused advised his accomplices belonging to Al-Badr and the Razakars, leading to a massacre in Shohagpur. The Defense asserted that no evidence was produced by the Prosecution showing how Kamaruzzaman advised those committing the Shohagpur massacre. Defense counsel argued that in order to prove guilt beyond reasonable doubt, the Prosecution must have shown that Kamaruzzaman assisted by directly advising the commission of the massacre. In order to prove complicity, the Prosecution must prove that the advice given by the Accused substantially contributed to the offense and affected the manner in which the crimes were committed. Furthermore, the Defense stated that the Prosecution must prove that the massacre would not have taken place in the same manner if not for the Accused’s involvement. Ehsan cited to the ICTY case of  Prosecutor v Dusko Tadic, Case No. IT-94-1T, para 688-689.

The Defense noted that Prosecution witness 2 testified that the Accused told his followers that they were required to surround the village because freedom fighters were coming to the Shohagpur. The Defense expressed doubt that such a statement can be used to prove Superior Responsibility under section 4(2) of the International Crimes (Tribunal) Act, 1973, let alone individual responsibility for the entire massacre. Citing the ICTR case of Simeon Nchamihigo, ICTR-2001-63-DP, para 352, the Defense argued there must be a causal relationship between a directive and the offense. Here, instructing people to surround the village does not amount to ordering a massacre, and therefore the Prosecution has failed to prove such a link. Additionally, the Prosecution has alleged that the term “advice” may be construed as “planning” and that Kamaruzzaman planned the massacre. The Defense argued that planning is not a basis for direct individual liability under the 1973 Act. If the Prosecution wished to hold Kamaruzzaman liable for planning, they should have charged him under Section 4(2), for command responsibility. Even if the Accused had been properly charged with planning under the Doctrine of Command Responsibility, the Prosecution has still failed to prove the necessary elements of the crime because it is unclear what the Accused planned.  Furthermore, the alleged planning must encompass both the preparatory and execution phase of the alleged criminal act (Akayesu, ICTR Trial Chamber Judgment, para 480) and the level of participation in the planning must be substantial (Laurant Semanza, ICTR Trial Chamber, para 380).

The Defense submitted that no evidence has been adduced as to the level and substance of Kamaruzzaman’s alleged participation. The Prosecution has also failed to clarify whether Kamaruzzaman provided advice as to how the attack was to be carried out, who was to participate, when the attack would be executed. The Defense further argued that, the alleged planning must have been a material element of the committed crime (Prosecutor v. Athanase Seromba, Trial Judgement, ICTR-2001-66-I; para 303) and mere presence is not enough to prove planning (Prosecutor v. Moinina Fofana, Allieu Kondewa, Special Court of Sierra Leone, Appeal Judgment, SCSL-04-14-T; para 61).

Charge 5
The Defense noted that the Charge Framing Order alleges that Kamaruzzaman was complicit in the killing of civilians because he ordered the transfer of these victims to the Jhinaighati Army Camp. The Defense argued that none of the Prosecution witnesses alleged that the victims were transferred specifically because of an order from the Accused. Therefore they argued the contents of the Charge Framing Order have not been proved.

The Defense addressed the testimony of Prosecution witnesses 7 and 14, who were called in support of Charge 5.  The Defense stated that Prosecution witness 7 gave no evidence of Crimes Against Humanity and Prosecution witness 14 provided only hearsay evidence. Even though Prosecution witness 7’s testimony about the time of his capture and release is consistent and corresponds with Charge 5, he did not give any evidence about the commission of Crimes Against Humanity and made no reference to any killing. Prosecution witness 14 testified about killings but referred to dates that are contradictory to the Charge Framing Order as well as to the testimony of Prosecution witness 7. The Defense argued that Kamaruzzaman cannot be convicted on the basis of such contradictory evidence.

The Defense outlined the major contradictions between the testimony of Prosecution witnesses 7 and 14. Prosecution witness 7, Mr Liakat, stated that he, Prosecution witness 14 Mujibur Rahman Panu, and one Sattar were all released from custody on the same day. Prosecution witness 14, Mr. Panu, contradicted Mr. Liakat and stated that he and Liakat were released at the same time but that Sattar was released later. Additionally, Liakat testified that they were forced to go into the ditch and that they were blind folded while Panu disagreed with these details. Most seriously, Liakat claimed that the event took place in Ramadan, the month before the Liberation (i.e. November, 1971) whereas Panu testified that the killings occurred in May of 1971. Panu’s testimony about the alleged date of the incident also contradicts the Charge Framing Order. Panu claimed that he received training from an EPR Subedar, went to India and came back from India all in the month of May. He also alleged that he was captured and released in May. The Defense found this testimony to be exaggerated and unreliable. The Defense further submitted that the witness realized this mistake later on and then refused to state any specific month during his cross-examination. Given such unreliable testimony the Defense argued the Prosecution has failed to prove the charge beyond a reasonable doubt.

Charge 6
The Defense next submitted their arguments on Charge 6 which alleges that Kamaruzzaman instructed members of Al-Badr to abduct and torture two victims, resulting in the death of one.  The Defense argued that the Prosecution has only supported the charge with the testimony of Prosecution witness 1, who provided uncorroborated and unattributed hearsay evidence. The Defense noted that the witness’ testimony regarding the date, place and manner of killing contradicts the Charge Framing Order.

According to the witness, first claimed the killing occurred in August, but later alleged it happened in July of 1971. The witness claimed it happened at the house of the owner of Mizan Arts in Golki Bari, whereas the Charge framing Order states that the victim was tortured to death at the District Council Daak Bungalow. The witness also testified that the victim Tunu was killed during an operation while searching for him (PW-1) after he managed to escape.

Finally, the counsel noted that the brothers of the victim Tunu, Mr Sajidur Rahman and Jahangir were brought to Dhaka by the Prosecution on 17th September, 2012 for the purpose of testifying. However, the Prosecution later claimed they could not testify because they had fallen sick. The Defense implied that this was suspicious and should instill further doubt about the truth of the charges.

Charge 7
Finally, Defense counsel Ehsan addressed Charge 7, under which Kamaruzzaman is charged with participating and being complicit in the murder of Dara Miah, his father and other unarmed civilians. He argued that the evidence of the witnesses presented in support of this charge does not show the involvement of the Accused and in no way leads to the conclusion that the victims were killed under Kamaruzzaman’s instructions.

Prosecution witness 1 merely stated that Dara Miah was killed, a fact which has not been disputed by the Defense. The witness gave no evidence regarding Kamaruzzaman’s presence at the killing, or any instructions issued by him. Prosecution witness 9 also testified that he heard that victim Dara was brought to the camp and was later killed but provided no information as to how the victim was apprehended or killed. Prosecution witness 15 testified regarding the detention of victims Dara and Tepa Miah but only described the Accused as being involved with their arrest.

Charge 4
After the lunch break senior Defense counsel Abdur Razzaq addressed Charge 4 before making closing remarks on the overall case. Charge 4 alleges that Kamaruzzaman instructed Al-Badr to abduct a civilian named Golam Mostafa who was then taken from College Morh to Serih Bridge where he was shot and killed. The Prosecution referred to the testimony of Prosecution witnesses 2, 5 and 14 in support of the charge. The Defense pointed out that there were inconsistencies between the various witness’ testimony that cast doubt on their credibility. Razzaq stated that the inconsistencies of Prosecution witnesses 5 and 14 have already been discussed and so would not be repeated.

Razzaq noted that Prosecution witness 2 testified that Golam Mostafa’s hands were tied behind his back and that he was blind folded and not given water. These details however, were provided to the Investigation Officer during the witness’ original interview. Additionally, the witness testified in court that Golam Mostafa was beaten by un-named persons, whereas he had originally told the IO that he was being beaten by Nasir and Masud and overseen by Kamaruzzaman. The witness also claimed that the victim’s uncle from Kharkhoria came to release him, whereas he had told the IO that someone tall had come to release him. The counsel pointed out similar instances where the witness provided additional details in his court-room testimony that did not appear in his original statement to the Investigating Officer. The Defense stated that such inconsistencies suggest that the testimony may be fabricated.

Razzaq also noted that Prosecution witness 14 is a hearsay witness who testified that he heard that Golam Mostafa had been abducted by Kamaruzzaman and others near the college. The witness failed to provide any specific information about Kamaruzzaman’s involvement in the murder. The Defense concluded that the charge has not been proven beyond a reasonable doubt.

Doctrine of Superior Responsibility
The Defense again reiterated that in order to find Kamaruzzaman guilty under the Doctrine of Superior Responsibility the Prosecution must prove three things beyond a reasonable doubt. First, they must show the existence of a superior-subordinate relationship between the accused and the perpetrator of the offense. Secondly, the Prosecution must prove that the superior knew or had reason to know that an offense had been or was about to be committed. Thirdly, the Prosecution must show that the superior failed to take reasonable steps to prevent or punish the crime.

The Defense argued that to establish the existence of a superior-subordinate relationship, the Prosecution must show that the superior had effective control over his subordinates (Celebici, ICTY Appeals Chambers Judgment; para 196). Furthermore, effective control means not only the ability to control the acts of others, but also the power to prevent offenses or punish offenders (Celebici, para 197, 266). In determining whether such authority exists the Tribunal should consider the following factors: 1) the capacity to enforce compliance with orders (Hadzihasanovic, ICTY Appeals Chambers Judgment; para 199), 2) the power to discipline (Delic, ICTY Trial Chambers Judgment; para 62) and finally, a person’s official position (Celebici, ICTY Appeals Chambers Judgment; para 197). Mere influence is not sufficient to prove liability (Oric, ICTY Trial Chambers Judgment; para 311). The appearance of authority also does not lead to a presumption of effective control over the commission of the offense (Celebici, ICTY Appeals Chambers Judgment; para 800, 810), although great influence – if shown – shall suffice (Brdjanin, ICTY Trial Chambers Judgment; para 372). Additionally, presence at a high level meeting in itself is not a proof of authority (Celebici, ICTY Trial Chambers Judgment; para 652, 658). Finally, the counsel submitted that effective control must be proven beyond a reasonable doubt (Oric, Appeal Chambers Judgment; para 18, 148). The Defense argued that the evidence and witness testimony submitted by the Prosecution is insufficient to prove that Kamaruzzaman exercised effective control over those who committed atrocities.

Defense Closing Arguments Concluded

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