The Prosecution presented their key legal arguments in the case against Mujahid. Prosecutor Afroz addressed a range of legal issues in conjunction Charges 1, 2, 4, 6 and 7. A written outline of the arguments was provided as reference for the Tribunal. The Defense counsel objected because the cover photograph of the outline showed numerous skulls. The Defense argued that such a picture is unnecessary, inappropriate and prejudicial. The Prosecution disagreed, claiming that there is nothing in the law or rules of procedure prohibiting such photographs. The judges agreed with the Prosecutor’s submission, adding that such a photograph will neither be detrimental nor advantageous to the case against the accused and will have no impact on the judicial process.
The Prosecution presented arguments on the following issues:
- Legal argument on the absence of victims’ dead body.
- Legal argument on ‘extermination ‘ in contrast to ‘murder’.
- The doctrine of superior responsibility and how it has been established by the evidence admitted.
- Evaluation of documentary evidences and further evaluation of the charges.
The Actus Reus of Murder and Necessity of Victim’s Body as Evidence (relevant to Charges 1 and 5)
The Prosecution began by emphasizing that the bodies of the victims in Charges 1 and 5 were recovered. She argued that the actus reus, of murder requires that the Prosecution prove that the killing itself occurred. Where the body is not found or recovered the killing remains unproved, resulting in the failure of the Prosecution’s case. In this case, Prosecutor Afroz argued that the Defense cannot claim that the actus reus in Charges 1 and 5 has not been proven by reason of failure to find the body of the victims.
The Prosecution also argued that that even where a victim’s body has not been recovered, murder may still be proven. The Prosecution cited to the ICTY Trial Chamber’s decision in Tadic (1997, para 240) and Brdjanin (2004, para 383 and 385), in which the Court found that the situation of war precludes the usual requirement of the production of a body in order to prove death. However, the court nonetheless asserted that there must be evidence to link the injuries received to the resulting death of the victim, which according to the Prosecution has been established in this case through the submitted evidence. The Prosecution also referred to the ICTY Appeal Chamber’s decision in Kvocha (2005, para 260) and the Trial Chambers’ decision in Halilovic (2005, para 37), as well as the decisions of Brdjanin (2004, para 385) and Limaj (2005, para 241), where the court reiterated that it is not necessary to establish that the body of the deceased person has been recovered. Finally, the Prosecution cited the ICTY Trial Chamber’s decision in Krnojelac (2002), that a victim’s death may be established by circumstantial evidence provided that the only reasonable inference is that the victim’s was a result of the acts or omissions of the accused.
Charge 6 and the Legal Perameter of ‘Extermination’
Under Charge 6 Mujahid is accused of involvement in the killing of Bangladesh’s intellectual community on 10 December 1971, the eve of Bangladesh’s victory against Pakistani forces. The Prosecution argued that Mujahid’s involvement in the killings, along with that of unknown members of Al-Badr, the Pakistani army and fellow defendants Gholam Azam and Nizami, has been established by the testimony of Prosecution witnesses 2 and 5. Prosecution witness 2 stated that Mujahid and Nizami brought intellectuals, journalists, freedom fighters and artists to Mohammadpur Physical College were they were inhumanly tortured. Prosecution witness 5, whose father used to work as the night guard of the College and who is now a caretaker therein, also incriminated Mujahid along with Gholam Azam and Nizami. Therefore the Prosecution asserted that Charge 6 has been proved.
Prosecutor Afroz also argued that Charge 6, which alleges murder as a Crime Against Humanity, should instead allege ‘extermination.’ Referring to the ICTY Trial Chamber’s decision in Blagojevic and Jokic (2005, para 571), the counsel stated that the difference between murder and extermination is the scale of killing. Extermination refers to mass murder. Thus, the core elements of murder and extermination are the same, as also shown in the ICTY Trial Chamber’s decision in Brdjanin (2004, para 388). The Prosecution also referred to the ICTR Trial Chambers judgments in Niyitegeka (2003), Ndindabahizi (2004), Kamuhanda (2004), Bisengimana (2006), Seromba (2008) and Bagosora (2008), paragraphs 450, 479, 698, 70, 189 and 2191 respectively.
The Prosecution noted that there is no conclusive authority as to how many murders constitute extermination, and thus argued there cannot be a numeric minimum. The commission of “extermination” is to be determined on a case-by-case basis, using a common sense approach, as stated in the ICTR Trial Chamber’s judgment in Kamuhanda (2004) and Gacumbitsi (2004) and ICTY Trial Chamber’s judgment in Vasiljevic (2002), Blagojevic and Jokic (2005) and Brdjanin (2004). Prosecutor Afroz also referred to the ICTR Appeals Chamber’s decision in Ntakirutimana (2004, para 516) and argued that the expressions ‘on a large scale’ or ‘large number’ do not suggest a numerical minimum. Finally, the Prosecution argued that the ICTY Trial Chamber in Krstic (2001, para 501) held that while extermination generally involves a large number of victims, it may be constituted even where the number of victims is limited.
Charge 7 and Additional Legal Issues on the Charge of Persecution
(also relevant for charge 2)
The Prosecution argued that Charge 7 is similar to charge 2 in that it concerns persecution as a Crime Against Humanity and Genocide, as allegedly committed on 13 May 1971 in Bakchar against Hindu community. The Prosecution has relied upon the testimony of Prosecution witnesses 8, 10, 12 and 13 who testified in support of the Charges. Prosecution witness 12 testified that he saw Mujahid along with Advocate Afzal, Alauddin Kha, and Kalu Bihari headed towards the local Board office of Khalilpur Machdor Union in an open jeep on the day of the incident to attend a Peace Committee meeting. Later he heard that these men went to the Hindu area in Bakchor and killed people there, including the the brother of Biren Shaha and others such as Profulla Mitra, Jahabondhu Mitra, Upen Shaha and others. Prosecution witness 13, Shakti Shaha, also testified as an eyewitness that he saw Mujahid order the killing of his father. He also testified that many others in his area were killed that same day. Therefore, the Prosecution asserted that Charge 7 has been proven.
The Prosecution noted that section 3(2)(a) of the 1973 Act codifies persecution on political, racial, ethnic or religious grounds as a crime, regardless of whether there was domestic legislation identifying such persecution as a Crime Against Humanity at the time. The Prosecution argued that the definition of persecution should therefore be borrowed from international law. Citing to a wide range of decisions, including the ICTR Appeals Chamber judgment in Nahimana (2007, para 985), ICTR Trial Chamber’s decision in Bikindi (2008, para 435), ICTY Appeals Chamber decision in Deronjic (2004, para 109), Kordic (2004, 107 and 671) and Blaskic (2004, para 131), the Prosecution stated that the crime of persecution consists of
1) actus reus: an act or omission which discriminates in fact and which denies or infringes upon a fundamental right under international customary or treaty law and
2) mens rea: was carried out deliberately with the intention to discriminate on one of the listed grounds, specifically race, religion or political affiliation/
The Prosecution further argued that hate speech, as delivered by Mujahid on various occasions, may in certain contexts also constitute persecution (ICTR Trial Chamber’s judgment, Bikindi (2008), 390-395 and 397.) Destruction to property with the requisite discriminatory intent (Kordic, 2004, para 108, 109) as well as rape (Kvocka (2005), para 367, 369-370) may also constitute persecution. Relating to the overall facts of the case, Prosecutor Afroz noted that it was Hindu village that was burnt, Hindu women raped and Hindu women targeted, all of which clearly proves the requisite discriminatory intent on the part of Mujahid and the other perpetrators. The Prosecution asserted that unlike Genocide, in order to prove persecution as a Crime Against Humanity it is not essential to show intent to destroy the whole group or ethnicity. The Prosecution did acknowledge that the mens rea requirement for persecution is higher than for other crimes against humanity under the ICT Act, but noted that it is still lower that that for Genocide (Kupreskic, (2000), para 636).
The judges interjected and asked the Prosecution to specify as to which offence, Genocide or persecution as a Crime Against Humanity, they were arguing. The Prosecutor stated that the court could adopt the approach taken by the ICTY Trial Chamber in its decision in Blagojevic and Jokic (2005), where certain acts by the Accused were classified as Genocide while others were persecution as a Crime Against Humanity.
Under Charge 4 Mujahid is charged with confinement and inhumane acts as Crimes Against Humanity as perpetrated against one Abu Yusuf Pakhi. It is alleged that the victim was confined in the Faridpur Stadium Army Camp for one month and three days and subjected to severe torture. The Prosecution argued that the facts of the Charge have already been proven and were recognized by Tribunal 2 in its judgment against Abul Kalam Azad, alias Bacchu. To further the Prosecution’s case against Mujahid the Prosecution referred to the hearsay evidence of Prosecution witness 6 and 8.
Liability of the Accused under the Doctrine of Superior Responsibility
The Prosecution argued that Mujahid played a central role in leading Al-Badr forces and exercised effective control over them, as shown by the meeting held in Mymensingh on 22 April 1971 where he allegedly stated that Al-Badr is the ‘Azrail’ (angel of death) for the freedom fighters. The judges interrupted and asked whether the Accused was the sole controller of Al-Badr forces. The Prosecution replied that there can be more than one superior for a group of subordinates. They argued that the authority structure is like a pyramid, and that all who are above subordinates in the pyramid may be held liable (Celebici). The Prosecution also asserted that it does not matter whether Mujahid was connected with any of the specific offences committed because he may be found guilty as long as it can be shown that he was part of the authority section of the pyramid.
Referring to the book ‘Ekatturer Ghatok O Dalal ra ke kothay’ compiled upon the research of Shahriar Kabir, that has been exhibited as Material Exhibit-1, prosecutor Tureen gave the nostalgic account of how the intellectuals were killed before the historical victory of Bangladesh, so as to paralyze the nation for generations. Referring to the description of the book, Tureen read that the nose and breast of Selina Parveen had been cut and the heart of Dr Rabbi snatched from the body.
Prosecutor Afroz read from the book Al-Badr, its original Urdu version, exhibited as Material Exhibit-5. The book describes the last meeting of Al-Badr members in its Head Quarters on 16th December 1971. She submitted that Mujahid made the speech and expressed his dissatisfaction over the surrender of the Pakistani Army. The Prosecutor further stated that those present at the meeting took a vow of an everlasting mission and that the Accused was the last to leave the room.
The tribunal asked how the Prosecution knew that the speech was delivered by Mujahid himself, and also enquired about the authenticity and reliability of the book. Prosecutor Afroz responded that the book refers to the person delivering the speech as ‘Nezam’, which is the Urdu word for “leader” or “head” and therefore referred to Mujahid – who has been shown to have been the leader of Al-Badr. Regarding the reliability of the book Al-Badr, the counsel said that it is the student publication of Jamaat-e-Islam in Pakistan and that the Jamaat leader Selim Monsur Khalid interviewed those who were present in the meeting in the late 70’s. She argued there is no reason for the book to contain false allegations given it was written by Jamaat itself.
Finally, the Prosecution concluded its Closing Statements by stating that Mujahid was an artistic leader, a villain of his own fashion, style and signature. Hence he should be punished in a way that sets an example.