The publication of this post was delayed as we were waiting to obtain certain documents from the Prosecution. Please excuse the inconvenience.

Today the Tribunal heard matters in the following cases:

1. Chief Prosecution vs. Muhammad Kamaruzzaman: Defense application and Conclusion of Prosecution Closing Arguments, Accused Present 
2. Chief Prosecution vs. Ali Ahsan Muhammad Mujahid: Defense Application and Cross-Examination of Investigation Officer

The Tribunal heard the last of the Prosecution’s Closing Arguments in the Kamaruzzaman  case. Prosecutor Tureen Afroz addressed remaining legal issues including the value of hearsay evidence, inconsistencies and the old evidence rule, and the doctrine of Superior Responsibility under Section 4(2). Two other Prosecutors made additional closing remarks before the Tribunal allowed the Defense to present a brief rebuttal. The case was then closed and the Tribunal officially took it into consideration awaiting verdict.

In the Mujahid case the Tribunal heard a Prosecution application seeking limitation of the number of Defense witnesses allowed. The Defense previously submitted a list of 1500 names listed as possible defense witnesses. After Disposing of the Application and limiting the Defense to three witnesses, the Tribunal then returned to the Defense’s cross-examination of Prosecution witness 17, the Investigation Officer.

Chief Prosecutor vs. Kamaruzzaman
Defense Application for Opportunity to Make Statement
At the beginning of the day’s proceedings, the defense submitted an application on behalf of the accused under Section 17(1) and (2) of the ICT Act seeking permission for the Accused to make a statement before the Tribunal. Section 17(1) provides that the Accused “shall have the right to give any explanation relevant to the charge mage against him.” Section 17(2) allows the Accused to conduct his own Defense or to have the assistance of counsel.

The Prosecution opposed the application and stated that such a statement could only be allowed while the Tribunal is hearing witnesses. However, Closing Arguments are taking place and there is no such right at this stage of proceedings.

The Judges quickly rejected the application and agreed with the Prosecution’s interpretation of the Statute. 

Prosecution Closing Arguments
Prosecutor Afroz submitted the Prosecution’s final arguments on points of laws in the case against Kamaruzzaman. She addressed evidentiary inconsistencies due to the lapse of forty years since the alleged crimes and the relevance of the Old Evidence Rule. She then argued that this case is a classic example of the doctrine of Superior Responsibility and it is not necessary that this mode of liability be specified within the Charge as it may be added at any point.

Evidentiary Inconsistencies
Learned Prosecutor Dr Tureen Afroz opened her closing submission on behalf by stating that the evidentiary discrepancies noted by the Defense are insignificant and as such should not have any substantial impact on the Tribunal’s ability to find the Accused guilty as charged. The counsel cited to the ICTR case of Nyiramasuhuko (Trial Chamber Decision, 2002 para 167 and 179) in arguing that the Tribunal has a wide discretion in respect of determining the reliability of the evidence before it. She submitted that minor discrepancies are normal in witness testimony and do not render the entire testimony unreliable. Noting that the ICT Act explicitly states that technical rules of evidence do not apply, the Prosecution submitted that the court should not be concerned about technical flaws.

The Prosecutor argued that witnesses cannot be expected to remember the exact dates of events forty years after they occurred. She stated that during the War of Liberation, murders and atrocities were ubiquitous and witnesses cannot remember the minute particulars of each incident that they witnessed. The Prosecutor referred to the trial of John Demjanjuk who was first tried in Israel and later in Germany. He was first convicted in Israel in 1988 for Crimes Against Humanity but was then acquitted on appeal by the Israeli Supreme Court after it was revealed that he was not the real “Ivan the Terrible,” the notorious guard at the Treblinka extermination camp in Nazi occupied Poland. He was subsequently charged again in Germany in 2001, this time on different allegations that he had served as a guard named Ivan Demjanjuk at the Sobibor and Majdanek camps in Nazi occupied Poland and at Flossenburg camp in Germany. He was found guilty in 2011 by the German Criminal Court but died pending appeal.  The Prosecution argued that the courts convicted Demjanjuk even when there were issues regarding identity of the defendants, whereas in Kamaruzzaman’s case there is no question that the Accused was a leader of Al-Badr.

The Judges interjected and disagreed with the Prosecution’s argument that mistakes in alleged dates of the incidents were inconsequential. The Tribunal stated that the charges against the Accused specify the dates of the alleged incidents and therefore the dates are at the core of the Prosecution’s case.

The Prosecution then compared the Kamaruzzamani case to the Indonesian trial of Florencio Tacaqui. She submitted that the facts of the Kamaruzzaman case is akin to that of Tacaqui, except that the evidence against Tacaqui was even less specific. After more than one year of investigation, the investigators had not determined that the name of the Accused was Tacaqui . In the two indictments filed in the case, he was neither described properly as a militia leader nor commander. Additionally, he was not specifically charged under the doctrine of Command Responsibility. There were major contradictions in the statements of the witnesses and when they were asked about such contradictions, they claimed that they did not know or were illiterate. Yet, in the course of trial, Tacaqui was repeatedly described as a militia leader. Prosecutor Afroz stated that the Prosecution in the Tacaqui case even forgot the basis fo the charges and on many occasions emphasized the high rank of the Tacaqui within the Sakunar structure. Nevertheless, The Tribunal of East Timor found Tacaqui to be guilty. Prosecutor Afroz stated that common knowledge may be relied upon as long as such reliance is restricted. The Tribunal in East Timor held  that it would be a gross blunder to neglect to hold Tacaqui accountable given hi role and status in the militia of Passabe. She concluded that if the ICT gives too much weight to the minor inconsistencies of the case and thereby finds the Accused not guilty, it will amount to another atrocity in itself.

The judges strongly objected to the Prosecutor’s comment. They stated that such statements are completely unacceptable. Prosecutor Afroz responded that it was an emotional topic and apologized for her comment.

Accused May Be Found Guilty Under Section 4(2)
The Prosecutor argued that even though the Charge Framing Order against Kamaruzzaman does not frame any charge under Section 4(2) of the ICT Act (which provides for liability under the doctrine of Command Responsibility), there is no legal bar to finding the Accused guilty under that section. The judges asked how a mode of liability can be imposed where it was not charged. The Prosecutor replied that the mode of liability may be determined in the course of the trial and the Tribunal may impose liability in accordance with such findings.

Hearsay
Prosecutor Afroz reiterated her previous submission in regards unanimous hearsay, referring to the ICC Pre-Trial Chamber decision in Ruto (2012), holding that anonymous hearsay evidence alone is sufficient to prove a material fact.

Response to Defense Arguments
The Prosecution briefly responded to the Defense’s arguments regarding Charge 2. They rejected the claim that an act must have been committed with discriminatory intent in order to amount to a Crime Against Humanity. Additionally, Prosecutor Afroz responded to the Defense’s complaint that the alleged victim, Principal Hannan, was not called as a witness despite being alive and available. She stated that the victim was 40 years old at the time of the crime and is now more than 80 years old and therefore testimony was a great strain to him. She further stressed that the Tribunal can determine whether he was dishonored by the acts committed against him through general consideration and that his specific testimony is not required in order to evaluate the extent of his mental suffering.

The Tribunal did not allow the prosecutors to reopen arguments on factual aspects of the case.

The Prosecution finally concluded by stating that it is their failure that the trial is taking place in 2013 and not in 1972. Nonetheless, the victims deserve justice despite the delay.

Final Remarks from Other Prosecutors
After Prosecutor Afroz’s submission other Prosecutors briefly made a few additional concluding remarks. Prosecution Haidar Ali stated that the Prosecution adopts the legal submissions already made before the Tribunal in the cases against Abul Kalam Azad and Quader Molla. He also apologized again on behalf of Prosecutor Afroz for her emotional comment that not punishing the accused would be an atrocity in itself. The Prosecutor stated that they are all emotional about the case, in fact the sixteen crore people (160 million) of Bangladesh are passionate about the case. He requested that the court impose the death penalty under section 22 of the ICT Act.

Defense Final Comments
Defense counsel Ehsan Siddiq was then given the opportunity to say a few final words if relevant to the Prosecution’s submissions from today. Mr. Ehsan argued that the Prosecution misinterpreted the decision of Tacaqui. Referring to page 46 of the Tacaqui judgment, he submitted that it was the Court held there that the mere fact that a landslide of witnesses testified against the Accused cannot be taken relied on to support erroneous reconstruction of the cases. He also submitted that the Tacaqui judgment itself stresses that the illiteracy of the witnesses in not a justification for ignoring the weaknesses in their testimony.

The Defense also argued that Section 10(1)(a) of the ICT Act requires that the Charge Framing Order be read out to the Accused so as to notify the Defendant of the accusations against him. He submitted that the trial process and the adjudication process must therefore be confined to the allegations of the Charge Framing Order. The Charge Framing Order for the case against Kamaruzzaman does not allege that the Accused is liable because of command responsibility under section 4(2). Therefore, Kamaruzzaman cannot now be found guilty under that section. The Defense referred to the case of Augustine Bao at the Special Court of Sierra Leone, stating that counsel attempting to hold Kamaruzzaman liable under the doctrine of command responsibility is equivalent to a change in the mode of liability and therefore the Charge Framing Order would have to be amended in order to do so.

The case was then concluded and the Tribunal stated it would take the case into consideration pending judgment.

Chief Prosecutor vs. Mujahid
Prosecution Application for Limitation of Defense Witnesses
The Prosecution submitted an application seeking the limitation of the number of witnesses that the Defense be allowed to call in support of its case. They argued that the Defense, in compliance with section 9(5) of the Act, previously submitted the names of a total of 1500 potential defense witnesses. They argued that this was an unreasonable number and was designed to cause delay. The Prosecution therefore asked that the Tribunal limit the number of Defense witnesses.

The Defense responded that they need to call at least ten Defense witnesses in order to sufficiently argue their case.

The court stated that it appears the Defense does not intend to rely upon the Defense of alibi. Therefore, the Tribunal stated that so many witnesses are unnecessary, particularly given the fact that the onus to prove the case against the accused rests upon the Prosecution. The Tribunal then passed an order limiting the Defense to three witnesses.

Cross-Examination of Investigation Witness (PW 17)
The Defense continued their cross-examination of Abdur Razzak, the Investigation Officer for the case against Mujahid. The witness  said that he was only instructed to investigate the alleged involvement of four people,  including Mujahid, all of whose cases are now before ICT. He stated that the instructions came from his office.

In the course of the investigation he stated that he went to Faridpur on 6 June 2011 and returned in the very early morning 7 June. He was accompanied by his computer operator Abu Hanif. On this visit he testified that he went from the  Faridpur Circuit House to Faridpur Shahor Molla Bari and visited one Liton’s house in order to interview him. He admitted that he did not record Liton’s interview and stated it was because Liton clearly suffered from mental illness. The Investigating Officer admitted that he did not interview Liton’s mother or wife, and did not inquire as to the nature of the apparent mental illness.  The witness stated that he had gone to Liton’s hous in order to investigate the alleged detention of victim Ranjit Nath in Liton’s house. The Defense suggested that he did not officially interview Linton’s family members because they were unwilling to support the Prosecution’s case.

The Investigating Officer admitted said that he did not make any sketch maps of the site and did not adhere to the PRB (the Police Regulations Book). He claimed that this was because he was not appointed to investigate the cases as a police officer.

The witness stated that he was accompanied by a source during his trip. The Defense asked whether the source was given money and he replied that there is a source fund but he is not sure if it is available for this case.

After leaving Faridpur Shahor Molla Bari, the Investigating Officer said that he then came returned to the Faridpur Circuit House where he found Shamsul Hauqe, Abdul Malek Mia, Dalil Uddin Sheikh and Narayan Chandra Sarkar. The Defense asked how they knew to meet him there. The investigation officer said that he did not notify anyone. The Defense asked how he knew that these were important people to talk to, to which the witness replied that investigation is an art.

The Investigating Officer said that he interviewed Malek Mia, Dalil Uddin Sheikh and Narayan Chandra Sarkar one after another, individually and separately. Their statements were not recorded except for the brief summarires that were relevant. No signature was taken from them. The Investigation Officer said that he submitted his Investigation Report on 30 October 2011 to the Chief Prosecutor.

The witness returned to Faridpur for a second visit on 18 May 2012 and returned on the evening of 19.05.2012. He said that he did not receive permission from anyone before going for the second time, at which point the Judge interjected there is no provision in law requiring such permission. The witness denied that the report on 30 October 2011 was incomplete. After returning to the Circuit Houst on 18 May, he recorded the statement of Foyez Uddin Ahmed and the statement of Gopinath.

The witness denied that he did not record Gopinath’s statement on 18^th because he did not give any statement in support of the instant case and that the recorded statement is not actually that of Gopinath, but is recorded from someone else.