Monthly Archives: June 2013

4 June 2013: ICT-2 Daily Summary – Mujahid Defense Closing Arguments and Prosecution Reply

Today the Tribunal heard matters in the following cases:

  1. Chief Prosecutor vs. Ali Ahsan Mohammed Mujahid

The Defense  completed their closing arguments before Tribunal 2 in the case of Mujahid,  discussing the evidentiary issues and the required elements for liability under the Doctrine of Joint Criminal Enterprise (JCE).

The Required Mental State for Liability Under Joint Criminal Enterprise
The Defense continued their arguments from the previous day and addressed the required mental state, or mens rea, for liability under the Doctrine of Joint Criminal Enterprise (JCE). Referring to paragraph 228 of the Tadic (Appeals Judgment) the Defense Imran submitted that the Prosecution has failed to prove the requisite mental state for liability under JCE as they have presented no evidence to establish that Mujahid intended to take part in a common plan or design with any member of Al-Badr or othered armed group for the purpose of committing a crime. The Defense argued that there is no evidence on record showing that Mujahid even had knowledge of an alleged common plan or design. Referring to the allegation that the accused said “usko hotao” (take him away) to his men, referring to a detainee, the Defense argued that these mere words do not prove the mental state of intent and knowledge required for JCE-1, as that type of JCE requires material participation by the Accused. Continue reading

4 June 2013: ICT-1 Daily Summary – Nizami PW 10, Chowdhury PW 41

Today the Tribunal heard matters in the following cases:

  1. Chief Prosecutor vs. Motiur Rahman Nizami
  2. Chief Prosecutor vs. Salauddin Qader Chowdhury

In the Motiur Rahman Nizami case, the Defense conducted the cross-examination of Tofazzal Hossain, Prosecution Witness 10, who testified in support of Charge no 15. Thereafter, the Tribunal adjourned the proceedings of the case until 5 June, 2013. In the Salauddin Qader Chowdhury case, the Defense continued the cross-examination of the Investigation Officer, Md Nurul Islam (IO), Prosecution witness 41. Thereafter, the Tribunal adjourned the proceedings of the case until tomorrow.

Chief Prosecutor vs. Motiur Rahman Nizami
Cross Examination of PW 10
The Defense asked the witness about the location of his village and neighborhood. During the examination-in-chief, the witness testified that Nizami was his classmate in Boalmari Madrassa. The Defense asked the witness about the witness’s education and when he was first admitted to Boalmari Madrassa. The witness answered that he entered in class one but could not remember the year. The witness further stated that in 1954 he passed Dakhil and in 1959 he passed Matriculation from Sathia Pailot School.

During the examination-in-chief, the witness testified that he is a teacher by profession. The Defense asked the witness when he retired from Sathia Pailot School, and whether or not he applied for an extension of his service. The witness replied that he applied for extension.

The Defense claimed that the witness went to Mohammad Ali, the Ameer of Jamaat-e-Islami and Principal of the Sathia Degree College, for a recommendation to extend his service, and that his application for extension was not granted. The witness admitted that his application to extend his tenure of service was not approved but denied that he went to Mohammad Ali for recommendation; he further added that Mohammad Ali was his student. The Defense asked the witness about a school, which was previously known as Imam Hossen Academy and now known as Upozilla Parishad Primary School. The Defense claimed that the witness is now the headmaster of this school. The witness replied that he is the acting headmaster of that school. Then, the Defense claimed that the witness took this post as acting headmaster just two years ago at the age of 72, although even with extension the retirement age for teachers is 65. The witness admitted that a teachers’ retirement age is 65 with extension, but denied that he took his job as acting headmaster at the age of 72. The Defense then asked him when he took the post as acting headmaster. The witness replied that he did so in October, 2012.

During the examination-in-chief, the witness testified that Nizami was his classmate in Boalmari Madrassa. The Defense asked the witness when he saw Nizami in his class, and asked about how the witness or other classmates referred to Nizami, with the aim of verifying whether Nizami was actually the witness’s classmate. The witness answered that the classmates called Nizami by the name the name of Moti or Motiar, and that he himself called Nizami “mamu.” The witness added that he saw Nizami in his class when he was a student of Ebtedaye Chahram (class four), but could not say which year Nizami entered that Madrassa.

The Defense asked the witness numerous questions about the general election of 1970, about Moulana Ishaq, who was elected in that election, and about when he first heard the word Razakar with the aim of casting doubt on his testimony. The Defense asked the witness about different posts, such as Secretary and Assistant Secretary of the school, and how the witness collected his government allowance from the school after the school was closed in May 1971, with the aim of casting doubt on whether the witness was actually a teacher at Sathia Pailot High School in 1971. The witness answered that Amanullah, an assistant teacher of the school, would communicate with the witness every three months and provide him the government allowance on behalf of the school. Defense then asked the witness where he used to reside during the Liberation War. The witness answered that in the beginning of the war he lived in his village home, but that after that he resided in different places. The witness further testified that when he had received his government allowance, Amanullah would take his signature.

During examination-in-chief, the witness testified that the Razakar camp was inaugurated in the middle of May, 1971, and that he saw Nizami, Moulana Abdus Sobhan, Moulana Ishaq and some 100-150 Razakars there. The witness also testified during examination-in-chief that he learned from people who had attended that at a meeting at the camp, the participants decided to kill people who joined the Liberation War and to motivate the youth to join the Razakar force. The Defense asked the witness whether he had seen any government employee attend this meeting and from whom he heard about the decisions of the meeting. The witness answered that he did not see any government employee attend the meeting, and that he heard about the decisions of the meeting from Sayed Ali Khan, Muslem Uddin, Samad Pramanik and many others who attended The Defense asked the witness who, other than himself, is still alive from colleagues in 1971. The witness answered that other than himself, headmaster Khorshed Alam, and assistant teacher Abdul Hakim, he could not say specifically who is still alive.

During the examination-in-chief, the witness testified about the incident of 17 November, 1971. The Defense asked the witness numerous questions about the incident, including whether he was present when the freedom fighters attacked the Razakar camp located at Sathia Pailot School and what happen to the Razakars who were killed at that alleged incident. The witness answered that he was not present at the site, but came to the site after the incident and heard that the corpses were buried. The Defense then asked the witness whether he saw the spot where the corpses were buried. The witness answered that he did not. The Defense asked the witness whether he saw who had taken the detained Razakars. The witness replied that he heard that the freedom fighters’s commander Mukul took the detained Razakars to Sahjadpur by boat. The Defense asked the witness about Sattar Razakar. The witness answered that among the 14 detainees was Sattar Razakar, who was killed in Darirampur.

Chief Prosecutor vs. Salauddin Qader Chowdhury
Cross Examination of PW 41
The Defense asked the witness numerous questions about the Accused’s political career, the number of times the Accused was elected as a Member of Parliament, where he was elected from, etc. The Defense claimed that when the Accused was a minister, he helped the people of the Hindu community by providing relief. The Defense claimed that one of the chief executives of the Accused is Hindu. The Defense asked the witness whether he knows how many people from the Rawzan, Boalkhali, Hathazari, Kotoali and Pachlaish areas left for India before 25 March 1971, and how many people remained in India after the war. The witness answered that he does not have any statistics regarding this. The Defense asked the witness about the family members of the Accused, including his father, mother, siblings, cousins, uncles, etc. The Defense claimed that except for the Accused’s father, Fazlul Qader Chowdhury, none of his family members were involved with the politics of the Convention Muslim League, and they were involved with the politics of the Awami League. The witness answered that he does not know. The Defense asked whether the witness asked cousins of the Accused, who are MPs of the Awami League, about the Accused and where he was in 1971. The witness answered that he interviewed them, but did not keep the interviews on record. The Defense asked whether the witness asked the family members of the Accused about where the Accused was in 1971. The witness answered that he did not.

The Defense asked the witness whether he received any documentary evidence showing that the Accused was a leader in 1971, or that the Accused gave any speeches against independence or against the Hindu community. The witness answered that he did not have any such documents. The Defense claimed that Fazlul Qader Chowdhury and the Accused were not members of the 104 members Peace Committee. The witness admitted that. The Defense claimed that there was only one Peace Committee in Chittagong, and that Mahmudum Nobi convened it. The witness denied the suggestion.

3 June 2013: ICT-2 Daily Summary – Mujahid Defense Closing Arguments

Today the Tribunal heard matters in the following cases:

  1. Chief Prosecutor vs. Ali Ahsan Mohammed Mujahid

Today the Defense continued their closing arguments in the case of Chief Prosecutor vs. Mujahid. They completed their arguments regarding the requirement of effective control by the Accused in order establish liability under Command Responsibility. They also emphasized doubt pertaining to particular charges due to inconsistent witness testimony. The Defense argued that the required mens rea, or mental state, has not been proven in the instant case. Finally the Defense submitted arguments regarding the Doctrine of Joint Criminal Enterprise (JCE) under international law.  Continue reading

3 June 2013: ICT-1 Daily Summary – Chowdhury PW 41

Today the Tribunal heard matters in the following cases:

1. Chief Prosecutor vs. Salauddin Qader Chowdhury

In the Salauddin Qader Chowdhury case, the Defense continued the cross-examination of Prosecution witness 41, the Investigation Officer Md Nurul Islam. Thereafter, the Tribunal adjourned the proceedings of the case until tomorrow, 4 June, 2013.

Cross Examination of Prosecution Witness 41
The Defense asked the witness when he joined the Criminal Investigation Department (CID), about his post, and whether he had worked in the CID in Chittagong. The witness answered that he joined the CID in July 1996 as a sub-inspector but did not work in the CID in Chittagong. The Defense asked the witness about his personal details, including his school and his education. The Defense asked the witness who, in 1971, held certain police posts in Chittagong. The witness answered that he did not investigate that. The Defense also asked the witness who, in 1971, held the post of Officer-in-Chief of the Hathazari, Boalkhali, Kotoali and Rawzan police stations. The witness answered that he cannot recall whether or not he investigated that. The Defense asked the witness whether he had interrogated any member of the police was held a post in 1971, or investigated the GDE and EUD records of the cases of these police stations. The witness answered that he did not. The Defense asked the witness whether he investigated the record of the documents regarding the people who were killed in these police stations in 1971, or the looting which took place in these police stations in 1971. The witness answered that he did not investigate into these matters.

The Defense asked the witness about the complaint petitioner. The witness answered that he is the complaint petitioner. The Defense asked the witness whether he had any documents showing that Salauddin Qader Chowdhury had been a member of a political party before 1978. The Defense also asked whether the witness had interrogated any leader of any political party regarding Salauddin Qader Chowdhury’s political identity before 1978. The witness answered that he did not have documents showing Salauddin Qader Chowdhury’s involvement with a political party before 1978, and that he did not interrogate any leader regarding this matter but he investigated the matter locally. The Defense claimed that in 1971 Salauddin Qader Chowdhury was not a student of any school, college or university located in Chittagong. The witness admitted that.

The Defense asked the witness whether he knew that Salauddin Qader Chowdhury lost his mother at an early age, and that Chowdhury’s father married again after his mother’s death and owned her property. The witness answered that he heard that Fazlul Qader Chowdhury had a second marriage, but did not know whether Salauddin Qader Chowdhury lost his mother at an early age. The Defense asked the witness whether he had any documents showing that Salauddin Qader Chowdhury resided in Chittagong in 1971. The witness answered that Salauddin Qader Chowdhury resided with his father Fazlul Qader Chowdhury in 1971. The Defense then claimed that Fazlul Qader Chowdhury had three houses in Bangladesh, including one located in Dhanmondi, Dhaka, and another house in Pakistan. The Defense repeated the question again, asking whether the witness had any documents showing that in 1971 Salauddin Qader resided in Chittagong. The witness answered that he had documents, which were the GR register of the Zilla Police Court, two copies of Complaints, reports of the Court Inspector and fortnightly reports and newspaper cuttings. The Defense claimed that the name Salauddin Qader Chowdhury was not on the list of voters before 1979. The witness answered that he did not know. The Defense claimed that the Complaints and the GR register were recorded in 1972. Witness admitted that, but added that the incidents discussed in those complaints took place in 1971. The Defense claimed that in 1971, several cases were filed against the Pakistani Army for killing, mass killing and looting. The witness answered that he did not receive any records regarding these matters, and that is why he did not know. The Defense claimed that the witness is not telling the truth, even if he is aware of the fact. The witness answered that this is not true. The Defense asked the witness whether he had recorded any interview with any witness showing that Salauddin Qader Chowdhury resided in Goods Hill, Chittagong in 1971, or interviewed anyone who resided near Goods Hill. The witness answered that this information is in the testimony of different witness.

The Defense asked the witness whether he had seized any newspaper from 1971 showing Salauddin Qader Chowdhury’s relation with the Pakistani Army. The witness answered that he did not. The Defense asked the witness whether he had any document showing that Salauddin Qader Chowdhury had any involvement with the Muslim League Convention in 1971, or any documents showing that Salauddin Qader Chowdhury attended any meeting with his father Fazlul Qader Chowdhury. The witness answered that he did not have any such documents. The Defense claimed that there are many examples available in the world showing that the son and father are supporters of two different political parties. The witness admitted that such examples are available, but added that Salauddin Qader Chowdhury was a follower of his father, and that is why he later on was involved with the politics of the Muslim League. The witness further said that from the police reports, it was evident that Salauddin Qader Chowdury was a candidate of the Convention Muslim League. The Defense asked the witness whether he had verified this information with the Election Commission. The witness answered that he had not. The Defense claimed that the police report was a fake report created on the instruction of the witness. The witness denied the suggestion.

2 June 2013: ICT-2 Daily Summary – Mujahid Defense Closing Arguments

Today the Tribunal heard matters in the following cases:

  1. Contempt Proceedings vs. Selim Uddin  and others                                                     
  2. Chief Prosecutor vs. Ali Ahsan Mohammed Mujahid: Defense  Closing Arguments

Tribunal-2 heard contempt proceedings against Selim Uddin and his fellow Jamaat-e-Islam leaders Hamidur Rahman Azad MP and Rafiqul Islam Khan. Selim Uddin, through his lawyer Tajul Islam, provided an unconditional apology to the Tribunal for his derogatory remarks and did not attempt to justify them. Defense counsel Tajul Islam submitted that Selim Uddin did not intend to disrespect the Tribunal. After hearing the apology the Tribunal fixed 9 June 2013 for passing their final order. The two other contemnors Rafiqul and Hamidur again failed to appear before the Tribunal or to submit any explanation of their comments through legal counsel.

After lunch, Defense counsel Abdur Razzaq resumed his Closing Arguments on behalf of Ali Ahsan Mujahid. The Defense discussed the various legal aspects of case along with some of the evidentiary matters regarding the alleged leadership position held by the Accused within Al-Badr, which is a key factual matter in the charges against him. The Defense additionally addressed the following:

  1. Probative value of the documentary evidences.
  2. Defective charges and the lack of specific allegation therein.
  3. Section 4(2) of the 1973 Act and imposing liability for superior / command responsibility. Continue reading

2 June 2013: ICT-1 Daily Summary, Nizami PW 10, Mubarak Hossain PW 3

Today the Tribunal heard matters in the following cases: 

  1. Chief Prosecutor vs. Motiur Rahman Nizami
  2. Chief Prosecutor vs. Mubarak Hossain

In the Motiur Rahman Nizami case, the Tribunal heard the examination-in-chief of Tofazzal Hossain, Prosecution Witness 10. Thereafter, the Defense requested time to prepare for cross-examination, alleging that the Prosecution informed them about PW-10 just before the beginning of today’s proceedings (normally the Prosecution informs the Defense about the witness who is going to testify on the day before, so that Defense can prepare). The Tribunal allowed the prayer and adjourned the proceedings of the case until 4 June, 2013.

In the Mubarak Hossain case, the Tribunal heard the examination-in-chief of Md Rafiqul Islam, Prosecution Witness 3, who testified in support of charge no 3. Thereafter, Defense Counsel Ahsanul Huq Hena conducted cross-examination. After the conclusion of the cross-examination, the Tribunal adjourned the proceedings of the case until 9 June, 2013. Continue reading

30 May 2013: ICT-2 Daily Summary – Mujahid Defense Closing Arguments

30 May 2013: ICT-2 Daily Summary

Today the Tribunal heard matters in the following cases:

  1. Chief Prosecutor vs. Ali Ahsan Mohammed Mujahid

Today Defense counsel Abdur Razzak began his portion of the Closing Arguments in the case of Mujahid. Although he had previously been designated to cover only the legal aspects of the case, he also discussed evidentiary and factual issues as well, particularly issues pertaining to documentary evidence.

The Defense also informed the Tribunal that because the senior Defense team is also appearing before the Appellate Division in conjunction with the Qader Molla case appeal, they would need the Tribunal to accommodate the Defense’s schedule (in particular Mr. Razzak’s schedule). He said that he would only be able to present arguments in the Mujahid case in the afternoon. The Tribunal agreed to accommodate the Defense counsel as far as possible.

Closing Arguments
The Defense noted that the book “Al-Badr” is the primary documentary evidence relied upon by the Prosecution to establish that Mujahid held a leadership position in the Al-Badr forces during the 1971 war period.

The counsel stated that the book refers to the speech of the ’Nezam’ (Head/leader) of Al-Badr, given the night before Pakistan surrendered on 16th December 1971. The counsel submitted that this is the worst possible form of hearsay evidence as there is no reference as to who recalled and reported the meeting, who gave the description of the meeting, when and where such an interview was taken and how the contents of the speech of the ‘Nezam’ could be authenticated. The Defense submitted that without knowing this information, the evidence cannot be relied upon in reaching any conclusion regarding Mujahid’s position within the Al-Badr forces or his alleged guilt. Because the book amounts to anonymous hearsay it cannot be relied upon. Continue reading