Today the Tribunal heard matters in the following cases:
- 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.
Effective Control to establish Superior Responsibility
The Defense resumed the arguments from the previous day and addressed the issue of whether Mujahid had “effective control” over Al-Badr members. The counsel referred to the testimony of PW-1 Shahriar Kabir and submitted that the witness just made a skeleton reference to Mujahid being the head of Al-Badr. The Defense argued that such an offhand reference is both legally and factually insufficient to establish liability under Command Responsiblity. They also argued that the testimony of PW-2 Jahir Uddin Jalal is similarly insufficient to establish Command Responsibility because nothing in his testimony shows that Mujahid had effective control over the perpetrators of the crimes. Pointing to the case of Prosecutor v Pavle Strugar, (paragraph 395 of the ICTY Trial Chamber’s Judgment), the Defense outlined how evidence had been adduced to show that the accused Strugar had authority to give direct orders not only to the units under his immediate or first level command, but also to units under the command at a second or further lower level. The authority of Strugar to give direct combat orders included authority to order a unit to cease fire and to explicitly prohibit attacks on particular targets. He also had the authority to seek an increase of the number of military police. Referring to paragraphs 405, 406 and 414 of the judgment, the Defense argued that evidence was submitted to show that Strugar controlled his subordinates and had the authority to prevent atrocities. Unlike the ICTY case, the Defense argued that the Prosecution here has failed to outline the elements of such authority and control and that there is not a sufficient case against Mujahid. The counsel also referred to the Prosecution’s argument that the speech of the Al-Badr “Nezam” was made by Mujahid, as an “argument in desperation”, emphasizing that there is nothing to show that the so-called “Nezam” or Chief of Al-Badr who allegedly gave that speech, if at all, is the accused Mujahid now being tried before this Tribunal.
Actus Reus for Aiding and Abetting
The Defense then went on to discuss case law concerning aiding and abetting the commission of an offence, more specifically international crimes. Referring to paragraphs 270 and 271 of the ICTY Trial Chamber Judgment in the case Prosecutor v Naser Oric, the Defense submitted that the participant’s conduct has to be more than merely facilitating the commission of the principal offence and that it requires influencing the principal perpetrator by way of inciting, soliciting or otherwise inducing him or her to commit the crime. The counsel stated that the Accused must have aided and abetted the perpetrator in the commission of the crime and should have done so with the awareness that his acts would assist the perpetrator. The Defense stated that the Prosecution has failed to produce such evidence in this case. No evidence showing a plan for the commission of crimes or the carrying out of objectives that would clearly lead to the commission of crimes has been presented, let alone linked to Mujahid. The Defense further submitted that in order to prove the actus reus i.e. the physical element of aiding and abetting a crime, the Prosecution must show that the Accused provided practical assistance, encouragement or moral support to a principal offender and that the same must had a substantial effect on the commission of the crime. Merely alleging that Mujahid visited a particular camp once or twice is not sufficient because presence alone at the scene of the crime is not conclusive of aiding and abetting unless it is demonstrated to have a significant legitimizing or encouraging effect on the actual perpetrators. The Defense argued that it is surprising and hard to believe that a young person like Mujahid, who was barely in his early 20s during the war, would have the standing to inspire the Pakistani Army or Al-Badr members to commit the atrocities. The counsel further referred to para 726 of Trial Chamber’s decision in Prosecutor v Blagojevic and Jokic, and paragraph 517 of the Trial Judgment in the case of Limaj, amongst others.
Citing Charge 5 as an example, the counsel pointed out that in less than half a sentence the charge alleges that the accused assisted the accomplices in killing civilians during the War of Liberation in 1971. The Charge does not give any specific allegation as to how such assistance was advanced, if at all. The Defense argued that such generalized allegations are not supported by evidence of any kind, neither documentary nor oral. Referring to the witness testimony of PW-2 (page 42 of oral testimonies, 3rd line from top) and the statement of PW-5 (in page 75), the Defense submitted that the witness did not refer to any act of planning and merely stated the name of the Accused without contextual connections regarding the commission of the crimes by his subordinates. The Defense concluded that poor evidences like those being presented in the instant case cannot be used to prove the offence of murder under Section 302 of the Penal Code, let alone Crimes Against Humanity.
Mens Rea to establish liability for aiding & abetting
The Defense next addressed the mens rea, the required mental state, for aiding and abetting in the commission of a crime under Section 3(2). They noted that the Nuremburg trials established that the Prosecution must not only prove the physical act of the crime, but also show that the Accused had the required mental intent for the commission of the crime. They argued that the Prosecution must show that Mujahid knew that his acts assisted in the commission of the specific crime in question and that he was aware of the essential elements of the crimes, including the specific intent of the principal offender. Referring to paragraph 326 of the ICTY Trial Chamber’s decision in Prosecutor v Delalic, Pavo and Zenga (Celebici case), quoting the Tadic case, the Defense stated that there must be awareness of the act of participation coupled with a conscious decision to participate by planning, instigating, ordering, committing, or otherwise aiding and abetting in the commission of a crime. In this case the original perpetrators have not been identified and the Prosecution has failed to prove that Mujahid was aware of participating in the commission of crimes, or that he consciously decided to participate by planning, instigating, ordering, committing or otherwise aiding and abetting in the commission of a crime. Therefore the Prosecution has not met its burden in proving its case against Mujahid.
The Defense further referred to paragraph 288 of the Oric Trial Chamber decision, which states that the act of aiding and abetting must be intentional, the aider and abettor must have ‘double intent,’ meaning Mujahid must have intended his acts to contribute to the completion of the crime by the principal perpetrator and must at the least be aware of the type and the essential elements of the crimes to be committed. The Defense argued that this double intent has not been attributed to Mujahid.
Joint Criminal Enterprise (JCE)
The Defense finally discussed the doctrine of Joint Criminal Enterprise (JCE), as encompassed by Section 4(1) of the 1973 Act and alleged in Charges 1 and 6. The counsel submitted that there are three categories of JCE, as enumerated in paragraphs 196, 202, 204 and 206 of the ICTY Appeal Chamber’s decision in the case Tadic. The first category (JCE-1) consists of those cases where all co-defendants, acting pursuant to a common design, posses the same criminal intent. For this form of JCE, the accused must voluntarily participate in one aspect of the common design and must intend the end criminal result even if he does not perform the crime itself. The second category (JCE-2) embraces the so-called “concentration camp” cases: which provides liability for those who acted as administrators for concentration or slave labor camps. Finally, the third category of Joint Criminal Enterprise concerns cases where all parties participating in a common plan for a course of conduct are liable where one or more of the perpetrators commits an act which, while outside the common design, was nevertheless a natural and foreseeable consequence of that common purpose.
The Defense submitted that section 4(1) of the 1973 Act Is similar to the first type of JCE. However, Charge 1 seems to refer to a situation that falls within the purview of JCE-3. The Defense claimed that the Prosecution’s arguments also appear to be alleging JCE-3. The Defense argued that in order to prove a case of JCE-3, there must be evidence of a common plan. In this case they argued that no such common plan has been alleged and no evidence has been adduced to show that Mujahid participated in such a plan. The Defense cited to paragraph 227, Tadic, ICTY Appeal Chamber judgment. They further argued that no evidence has been submitted to establish that Mujahid intended to take part in such a common plan or design with any Al-Badr members for the purpose of committing any offence. Further referring to paragraph 83 of the case Kvocka (Appeals Judgment), the Defense argued that there is no evidence showing that Mujahid had any knowledge of any sort of common plan or design.
Finally, the Defense referred to paragraphs 9-11 of the ICTY decision in Dordevic and submitted that the Charge Framing Order must have identified the nature and purpose of the Joint Criminal Enterprise, the existence of a common action plan and its purpose, as well as the identity of those engaged in the enterprise. Without these specifics the Charge Framing Order is defective. He also stated, citing para 389 of the decision in Simba, that the Prosecution must specify the particular form of JCE alleged as opposed to the general allegation of liability under Joint Criminal Enterprise.