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.

Chief Prosecutor vs. Mujahid – Defense Closing Arguments
Position of The Accused During the Liberation War
The Defense continued presenting their arguments relating to the position of the accused during the Liberation War in 1971. The Prosecution must establish that Mujahid held a leadership position in order to find him guilty under the Doctrine of Command Responsibility. Many of the charges against the Accused are framed under the Doctrine of Command Responsibility, including Charge 1 which pertains to the abduction and murder of Sirajuddin Hossain by Al-Badr members. The counsel submitted that the accused Mujahid cannot be held responsible as a superior or commander for the commission of such crimes as allegedly committed by Al-Badr members because there is no evidence that Mujahid had the power to issue orders to Al-Badr members, nor any evidence showing that he had the power to punish or prevent the commission of such crimes.

The Defense criticized the reliability and conclusiveness of the documentary evidence the Prosecution presented to show the positions of leading figures in the Al-Badr and Rajakar forces. Referring to Material Exhibit-5, the Defense argued that on page 133 of the book, the author identified the Al-Badr Commanders of Dhaka and Chittagong. Many names including Kamran, Mostafa Shawkat Imran, Ashrafuzzaman, Shamsul Huq, Murad and others have been expressly referenced. However, the name of Mujahid does not appear anywhere in the book and he is never identified as an Al-Badr commander. Mr Razzak, the senior Defense counsel, questioned how Mujahid could have been the commander of Al-Badr if Kamran was the first commander of the auxiliary force. He asserted that even if the presumption that all Al-Badr members were members of Islami Chatra Shongho (ICS) was correct, this is different from the presumption that all ICS members became Al-Badr members.  The Defense argued that the Prosecution must present specific hard evidence to show that the accused, being a member of the ICS, also became a member of Al-Badr as alleged. Material Exhibit-3, the book “The Vanguard of Islamic Revolution,” states that the IJT (Islami Jamiat Taleba) organized the Al-Badr and Al-Shams with the help of the Pakistani Army, and that most of Al-Badr consisted of IJT members. The Defense argued that this documentary evidence makes no reference to Mujahid and does not establish that he had effective control over members of Al-Badr. Additionally, Material Exhibit-4, a publication named “Pakistan between Mosque and Military” makes it clear that the Rajakar forces were comprised of Al-Badr and Al-Shams and that the Rajakar forces were created by the Pakistan Army. They stated that page 70 of the book quotes General Niazi and shows that Al-Badr forces were trained to carry specialized operations. The Defense therefore concluded that the Prosectuion has failed to establish that Mujahid was a leader of the ICS and exercised effective control over Al-Badr members.

The judges noted that if some but not all of the ICS members were absorbed into the Al-Badr forces, arguably there must have been a selection process. They asked who was responsible for that selection process. In response the Defense argued that it is for the Prosecution to prove that Mujahid was involved in the selection process, if there was any at all. Such presumptions cannot be allowed in a criminal case.

The Defense then referred to Material Exhibit-5, the book “Al-Badr” by Selim Monsur Khaled. They argued that the book is based predominately on anonymous hearsay and cannot be used as incriminating evidence. They argued that according to the Preface of the book the author visited Bangladesh for the first time in 1978. Therefore the author had no firsthand knowledge of the events of 1971 or the operations of Al-Badr in 1971. The Defense asserted that the entire book is based on uncorroborated hearsay, which carries no probative value. The Prosecution has attempted to incriminate Mujahid by referring to page 138 of the book, where it is stated that the Nezam, or leader, of Al-Badr gave a speech. However, Mujahid’s name does not appear and it cannot be assumed from the book that he was the “Nezam.” The Defense cited the case of Marques, paragraph 677 to support their argument regarding the lack of probative value of unattributed hearsay.

Defective Charge Framing Order
The Defense next argued that Charges 1, 4, 5, 6 and 7 are all defective charges. Referring to paragraph 19 of the Prosecutor v Karemera, (5 August 2005), addressing the defects in the form of the indictment, the Defense stressed that the role of Mujahid and his alleged co-perpetrators was not specified in the Charge Framing Order. They further argued that it is required that the Defendant and his role be precisely identified in order for there to be a finding of guilt. Because the Prosecution is alleging that Mujahid is liable under the Doctrine of Joint Criminal Enterprise (JCE), the Charge Framing Order needed to specify the existence of a Joint Criminal Enterprise. (Prosecutor v Dordevic, para 9 and Prosecutor v Krnojelac, para 16, decisions on the form of indictment and second amended indictment respectively).

The Defense further argued that the Charge Framing Order merely refers to Section 4(2) of the 1973 Act at the end of each of the charges, but that the Prosecution did not go prove the required elements of Section 4(2). For example, the Defense stated that it has been alleged that some people wearing ‘monkey caps’ abducted or killed the victim. However, the Prosecution failed to identify those individuals or even to specify how Mujahid exercised control over them. Similarly in regard to Charge-6, the Prosecution alleged that Mujahid regularly visited the army camp. However, the Defense argued that merely showing that he visited the camp is insufficient to affirm that the accused had control over the Pakistani Army officers and the Al-Badr members there. The causal link necessary has not been specifically identified in the charges. The counsel submitted that the charges should have been clear and unequivocal. As this is not the case, they argued that the Charge Framing Order is defective. Referring to the decisions in Muvunyi and  Nahimana, the counsel thus submitted that the charges under section 4(2) framed by the tribunal in counts 1, 4, 5, 6 and 7 are defective.

Command Responsibility
Due to time limitation, the Defense proceeded to address the issue of “superior-subordinate” relationship as an essential requirement in establishing command responsibility. The Defense argued that in order for the Tribunal to find liability, a ‘superior-subordinate’ relationship must be conclusively established. The Defense counsel Razzaq argued  that a civilian cannot be a commander or superior under the ICT Act. Rajakars were not civilians after 7 September 1971, when they were brought under the command of the Pakistani Armey. The Defense argued that the 1973 Act would have to be amended if civilians are to be considered to be auxiliary forces of the Pakistani Army. In response to the judicial intervention stating that Al-Badr was a auxiliary force, the Defense submitted that Mujahid was outside of the structure. He was not a member of the army, Rajakar or Al-Shams forces. The only identity for which he is being incriminated is that he was the chairman of ICS and that only from 8th October, 1971. Moreover, an ICS member could only give political support to the Pakistani Army.  The judges reminded the counsel that they would follow their findings on auxiliary forces and Al-Badr as laid out in the Tribunal’s previous judgments.

The Defense argued that in order to impose liability for command responsibility, the Prosecution must prove that Mujahid had the material ability to prevent or control the actions of those who ultimately committed the alleged crime. If Mujahid was in fact a superior and had a duty to control his subordinates, a causal link would established between Mujahid and the ultimate crimes committed. However, the Defense cited the decision of Oric (relevant page 76) in arguing that the decision in the Charles Taylor case shows that details of the superior-subordinate relationship and the ultimate commission of the crimes must be proved, liability cannot be imposed according to generalized allegations. For example, in the case of Musema, legal and financial control was taken as an element of effective control of the defendant. In the instant case the Prosecution has not produced any evidence of such legal or financial control, or of any control at all.

The Defense further referred to para 266 of the Celebici case and submitted that even mere power of influence, is insufficient to show command responsibility. Furthermore the Defense denies that Mujahid exercised even mere influence over the Pakistani Army or auxiliary forces. Furthermore, the Defense argued that the appearance of control is not relevant and does not suffice to prove command responsibility, as described in the decision of Delalic (para 800 and 810). The Prosecution must show that Mujahid had the power to issue orders and was within the chain of command. The Defense argued that there was already an established chain of command within the Pakistan Army. The military camps were under the command of military officers. Therefore they argued that it is impracticable that a young student leader or activist in his early 20s penetrated the existing chain of command within the Pakistani Army and was himself a superior without becoming part of the military. Unless Mujahid exercised such effective control over the perpetrators of the crimes, liability for superior responsibility cannot be imposed as reflected in para 715 of the decision in Limaj.

The Defense also argued that no documents showing any kind of plan for the commission of atrocities have been submitted by the Prosecution. They argued that proof of a plan is required, and secondly, it must be shown that Mujahid formulated the plan or at least was a part of it. In the absence of such substantial evidence, the Tribunal cannot presume that the accused was involved. They cited to paragraph 414 of the decision in Strugar as an example of the nature and quality of the evidence to be adduced to establish “effective control.”

The Tribunal then adjourned for the day. The Defense will continue its arguments tomorrow.