Today the Tribunal heard matters in the following cases:
- 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.
In regard to Charge 5, the Defense stated that the evidence of PW-1 does not establish that there was a common plan forming the basis of a Joint Criminal Enterprise. There is no evidence as to the identity of the perpetrators, time of alleged torture etc. The Defense stated that the Prosecution has failed to present anything that can prove beyond reasonable doubt that there was a common plan or design to murder Altaf, Rumi, Jewel or others, or that Mujahid participated in such a common plan or design. Thus the Prosecution has failed to prove that the Accused is liable under type 1 JCE. Furthermore, the Defense argued that there is no evidence to show that the Physical Training Institute was a system of repression similar to a detention or concentration camp and therefore allegations of a Joint Criminal Enterprise of type 2 have not been proven. Finally, the Defense asserted that there is no evidence showing participation of the accused in a significant way that could give rise to a Joint Criminal Enterprise of the 3rd type. The Defense argued that even if Mujahid had tortured people in September (assuming for the sake of argument), and those victims were shot by the Pak Army in December, the alleged series of events would not constitute proof of a Joint Criminal Enterprise. The Defense concluded that a nexus between the actions of the Accused and the ultimate crimes alleged has not been established.
Moving to address Charge 6, the Defense argued that the Prosecution should have specified which form of JCE they were alleging against Mujahid. As with Charge 5, the Defense argued that the elements required to prove JCE-1 are not present as the individual perpetrators of the crime have not been identified. Nothing in the testimony of Prosecution witnesses 5 and 2 support a charge of JCE type 2. PW-5, Rustam Ali, said nothing to incriminate Mujahid except that he saw the Accused once at the camp. No evidence was presented to show that the accused had killed or even slapped anyone, let alone participated in a significant way in the functioning of a common criminal plan. The Defense referred to paragraph 599 of the case of Kvocka (Appeals Judgment). The court’s findings there differed from that in Tadic. Additionally, in the case of Zigich the court held that it would not be appropriate to hold every visitor of a concentration camp to be liable under JCE and that the Accused must be a substantial participant in the camp’s operation. The Defense submitted that the Prosecution failed to show a culpable level of participation by Mujahid.
The judge interjected and drew the attention of the Defense to the testimony of Prosecution witness 12, the Investigation Officer, who stated in his cross-examination that Prosecution witness-5 told him that Mujahid used to frequently visit the camp and was often seen in an Army jeep with members of the Pakistani Army. In reply, the Defense replied that a mere visit does not prove a criminal act and that the Tribunal may not presume a fact that attributes guilt to the Defendant. The Prosecution must prove such facts beyond a reasonable doubt.
The Defense then turned to Charge 7. They argued that in order to prove type 3 JCE, the Prosecution must show that there was a common design and individulas who were part of the original design took actions that were reasonably foreseeable even though they were not part of the common plan. The Defense argued that the Prosecution had failed to show such a plan or to show that the actions of the alleged perpetrators were reasonably foreseeable. The Defense submitted that in paragraph 297 of its decision in the case of Abdul Quader Molla, Tribunal 2 took into consideration the human nature of witnesses. The Defense argued that the prosecution witness Mr Shakti Shaha, who allegedly saw and heard everything from the top of a Gab tree, must have had extraordinary eye sight, listening power and bravery. The Defense challenged the credibility of this witness in support of charge 7. Further, the Defense referred to paragraphs 88, 89 and 90 of the decision in Krnojelac in claiming that the Prosecution must show that the Accused provided practical assistance and encouragement at a minimum in order to be held liable. Mere presence at a scene of a crime is not enough.
Final Closing Remarks
Finally the Defense summed up their Closing Arguments in general, referring to a number of international judgments. They argued that specific intent is required for persecution and Genocide, as stated in the Blagojevic (Appeals Judgment) case at para 127. Additionally, it must have been shown that Mujahid was aware of the intent of the principal offender. Although he need not have possessed the same intent, but he must at least have been aware of it.
Further referring to paragraph 232 of the judgment in Furundija, pertaining to the liability of an approving spectator, the Defense submitted that the perpetrators must have felt encouraged by the mere presence of the Accused. The Defense expressed doubt as to whether a 21 year-old boy’s mere presence could encourage elderly perpetrators including Army soldiers and Al-Badr members to commit Genocide.
The judge enquired whether the counsel thinks that Charge-1 and Charge-6 are part of the same broad incident of the killing of intellectuals. The counsel replied that these are separated transactions and are to be adjudicated separately.
The Defense also stated that abduction was not a Crime Against Humanity in 1971 as it was not then a part of customary international law. Therefore the principle of legality would be breached if the Accused is now tried for abduction as a Crime Against Humanity. Moreover they argued that Charge-1 relates to the Accused allegedly writing an article which allegedly lead to the abduction of the victim. The defense counsel contended that it has not been proven that the article was actually written by Mujahid, and even if it was, no evidence has been tendered to prove a causal link between the article’s publication and the abduction and murder of the victim.
The Defense stated that it adopted all submissions that it advanced in previous cases, including those on delay in prosecution, consequence of politically motivated trial etc. The counsel further added that the Jahanara Imam in her book “Ekatturer Din Guli” (Days of 71) stated that her son never returned and that no one told Jahanara Imam about Mujahid being involved, nor did she ever allege that he was a perpetrator. The Defense stated that Charge 5 is solely supported by Prosecution witness 2, who they deemed unreliable.
Mens Rea to establish liability for aiding and abetting
The Defense argued that Genocide was not a crime under international law at the time of the Nuremburg trials. It was only codified and recognized under international law in 1948 in the Genocide Convention. The Defense argued that international law recognizes that Genocide may be committed against groups on religious or ethnic grounds, but argued that the killing of intellectuals who are neither a particular nation nor a particular group cannot be regarded an act of Genocide as proclaimed in Charge-6. The Defense submitted that Genocide is the crime of crimes and therefore the standard of proof is very high. Referring to paragraphs 175-177 of the decision in the Seromba case, the counsel stated that if intellectuals cannot be proved to be a group, a charge of Genocide cannot be proved. The counsel submitted that the Prosecution did not argue why the intellectuals massacred just before the surrender of Pakistan should be considered Genocide. The Defense argued that “intellectualism” is not a characteristic of birth. Members of ethnic groups belong to that group based on their hereditary origin, language, religion etc. He cited to paragraphs 12-15 of the Akayesu decision.
The Defense argued that the charge of “extermination” did not appear in the Charge Framing Order and therefore the Accused cannot now be convicted of it as it would be a violation of his right to notice of the charges against him.
The Defense finally spoke on behalf of Mujahid, who wanted to speak for himself but was denied the opportunity. The Defense stated that Mujahid is a helpless man. He claimed that this entire trial is an act of politicial propaganda by the present government and that it amounts to trial by media. Mujahid was born in this beloved land and therefore left the outcome to the judges’ consciences.
After the conclusion of the defense summing up, the Prosecution submitted their final remarks before the Tribunal. She stated that the Defense’s claim that allegations must be proved by “hard evidence” is not founded in law. She stated that the concept of “hard evidence” as referred to by the defense has never been heard of in the international jurisprudence. Further she stated that international criminal law and national criminal law are totally different as envisaged in various trials starting from Nuremburg to the trial of Saddam Hossain of Iraq. She said that Article 153 of the Vienna Convention contains the rules of un cogens. No matter where the international crimes are committed, they can be tried. The technical rules of evidence shall not act as an impediment to punishing the perpetrators. Section 19 of the 1973 Act also reiterates the matter and states that the Tribunal is not bound to adhere to the technical rules of procedure. The Prosecution stated that therefore the Tribunal’s judicial process cannot be compared to the normal legal threshold. The question of hard evidence does not need to be imposed.
With regard to the Defense’s arguments about the Prosecution’s reliance on books, newspapers and editorials, the Prosecution submitted that the 1973 legislation does not prohibit admission and reliance upon editorials.
Regarding the credibility of the witnesses, the Prosecution argued that the witnesses were made available before the Tribunal for cross-examination and that their credibility should be determined based on their testimony, not in consideration of an individual witness’s position outside the court. Regarding the authenticity of the book Al-Badr, the Prosecution argued that it has been challenged on two aspects, firstly regarding its translation and secondly, its source. She said that the original Urdu book has been submitted before the Tribunal and that it contains references to the sources relied upon in its end notes and footnotes. Therefore the book’s authenticity is assured.
Finally, the Prosecution addressed the question of whether intellectuals are a protected group. She stated that they were a national group and that nationality is a protected characteristic under the Genocide Convention. Citing the decision in Christic where a military age group from a particular religious background were targeted and subjected to Genocide, the Prosecution submitted that Bengali intellectuals as part of national group could also be considered as a protected group under the law governing Genocide.