14 August 2013: ICT-1 Daily Summary – Chowdhury Closing Arguments, Prosecution Rebuttal

Today the Tribunal heard matters in the following cases:

  1. Chief Prosecutor vs. Salauddin Qader Chowdhury

The Tribunal heard the seventh day of the Defense’s Closing Arguments in the Salauddin Qader Chowdhury case. The Tribunal had instructed the Defense yesterday that they needed to conclude their arguments within the first hour of today’s session. After the Defense completed their arguments the Prosecution presented its rebuttal. The Tribunal then closed the case pending judgment. 

Defense Closing Arguments
Arguments Regarding Application
The Defense argued in support of its application, filed yesterday on behalf of Salauddin Qader Chowdhury. Yesterday Defense submitted the certified copy of the writ which was filed by Satha Ranjon Sing, son of Nuton Chandra Singh (victim of Charge 3), in 1973. The Defense argued that the writ petition does not claim that Salauddin Qader Chowdhury shot Nuton Chandra Singh. They asserted that the version of events contained in the First Information Report (FIR) of that case differs from the allegations brought against Salauddin Qader Chowdhury regarding the killing of Nuton Chandra Sing. Today the Defense additionally submitted the 1973 FIR from case no 41(1)72, which was brought by Satha Ranjon Sing in 1972. The Defense clarified that it is only referring to the document, not relying on the document. The Defense asserted that the FIR stated that the soldier who killed Nuton Chandra Singh fired three times. Furthermore Satha Ranjon did not mention the name any witnesses in the FIR, though in the current case it is claimed that Gopal Chandra Das was present. The Defense concluded that the two versions of the killing of Nuton Chandra Singh raised serious doubts about the Prosecution’s case.

Closing Arguments
The Defense then continued their Closing Arguments regarding Charge 3. Gourango Singh, Prosecution witness 4, testified that after the liberation war relations between Satha Ranjon Sing and Salauddin Qader Chowdhury were good. The Defense claimed that Satha Ranjon Singh helped nominate Salauddin Qader Chowdhury for the General Election of Parliament in 1979. Additionally the Defense noted that Profulla Ranjon Singh, Prosecution witness 5, testified that on 13 April at 4 pm while he was in Ramgor Jotish Dor informed him that his father Nuton Chandra was killed. However, Porag Dhar, Prosecution witness, testified that his grandfather Jotish Dor most probably did not go India in 1971 and so could not have told Profulla about these things.

The Defense further argued that there are serious contradictions regarding the time, place, and manner of the killing of Nuton Changra Singh and that the Prosecution had failed to prove their case beyond a reasonable doubt. The Defense submitted that the witnesses for this case were selected arbitrarily and questioned how the Investigation Officer selected the witnesses. The Defense noted that Salauddin Qader Chowdhury entered into politics in 1978 and was not a public figure before that time. They questioned how witnesses were able to recognize him (Salauddin Qader Chowdhury) at the time of alleged occurrences. The Defense also questioned whether the Tribunal had proper jurisdiction over this case.

Regarding Goods Hill, the Defense argued that the Prosecution witnesses failed to describe the topography of Goods Hill accurately. Defense submitted that M Salimullah, Prosecution witness 2, testified that garage was in the ground floor and the door of the garage was made by tin. M Salimullah further testified that the Goods Hill was 7 or 8 katha. He further testified that in 1971 the garage was two storied and Sindhi Police resided in the first floor and a wooden stair was used to go upstairs. Defense submitted that Md Saleh Uddin, Prosecution witness 8 testified that he was tortured in a long room over the garage and one had to use a wooden stair to go downstairs. Md Saleh Uddin testified that the upper portion of Goods Hill was 15 katha. He testified that most probably the roof of the garage was made by concrete then he contradicted himself and said that the roof of the garage was tin.

At this point the Defense concluded their Defense arguments despite not having addressed each of the charges against Salauddin Qader Chowdhury. The Defense counsel stated that they would submit their remaining arguments in a written brief. To date our researchers have been unable to obtain a copy of these written arguments.

Prosecution’s Rebuttal
The Prosecution claimed that the Defense referred to documents without properly exhibiting them at the beginning of the trial as required under section 9(5) of the ICT Act 1973. The Prosecution submitted that Salauddin Qader Chowdhury was silent about the alleged date of occurrences and did not make it clear where he was on those specific days. They further claimed that the accused never explicitly denied that he is responsible for the charges brought against him. Furthermore, the Prosecution claimed that Salauddin Qader Chowdhury’s testimony was not corroborated by any other evidence or witness’ testimony. They argued that Qayyum Reza Chowdhury, Defense witness 3, testified that he dropped Salauddin Qader Chowdhury in the Tejgaon airport but did not make it clear whether Salauddin Qader Chowdhury went to Pakistan. Nizam Ahmed testified that Salauddin came to visit him in Karachi one or two days after his alleged arrival and claimed that he (Nizam) went to Karachi on the 7 or 8 April. However, the Prosecution submitted that the Defense failed to establish Chowdhury’s whereabouts and activities on 13 April 1971 or any of the other alleged dates of occurrencee, such as 4, 5, 14, 17, 20 of April; 5, 20 of May; 5, 27, 28 of July and 2 September of 1971.

The Prosecution also sought to highlight contradictions in the Defense witnesses’ testimony, noting that Qayyum Reza Chowdhury claimed that he met with Abdul Momen Chowdhury, Defense witness 4, in the office of Ashikur Rahman, whereas Abdul Momen Chowdhury testified that he met with Qayyum Reza Chowdhury, Defense witness 3, when Qayyum came to his place at Garden road. Referring to the ICTY cases of  Delalic, Vaseljevic, Limaj, and the ICTR cases of Musema, Rutaganda, Niyitegeka, Ntakirutimana, Semanza, Kajelijeli, Kamuhanda, Simba, Muhimana, Nahimana, Barayagwiza and Ngeze, the Prosecution submitted that merely denying that the accused was present is insufficient to disprove the Prosecution’s case. The Prosecution asserted that the Defense Exhibit-B, ‘Juddho Oporadhir Talika O Bichar Prosongo’, a book written by M A Hasan, contains a list of names of political members accused of war crimes, crimes against humanity and crimes of genocide and that Salauddin Qader Chowdhury is listed  as a member of the Muslim League. The Prosecution also argued that Defense Exhibit –C, a book titled ‘Amar Juddho, Amar Ekkattor’ written by Siru Bengali in 2012, contained the name of Salauddin Qader Chowdhury as well as support for the application of International Law in this case. The Prosecution asserted in adherence to Rule 50 of the ICT Rules of Procedure 2010 they have proved their case against Salauddin Qader Chowdhury beyond a reasonable doubt.

Application of International Law
Responding to the Defense’s argument that only the domestic law of Bangladesh is applicable in this case, the Prosecution argued that international legal principles and practices are also applicable. The Prosecution argued that the ICT Act of 1973 is a domestic law enacted by the ‘House of the Nation’ as per Article 65(1) and Article 142 of the Constitution and therefore it incorporates international legal rules, principles, practices and customs. They referred to the preamble of the ICT Act of 1973 which states that the Act is for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes and other crimes under international law. The Prosecution submitted that though the ICT Act of 1973 was enacted by a domestic parliament for setting up a domestic tribunal, the purpose of the tribunal itself is to try international crimes. Therefore the jurisprudence of international criminal law is being developed with the help of both national and international legal principles and practices. Referring the Articles 38(1) of the statute of the International Courts of Justice 1945 and Article 21 of the Rome Statute of the International Criminal Court 1998, the Prosecution argued that the jurisprudence of other international criminal must be interpreted with the help of both national and international legal principles and practices. The Prosecution submitted that if ICT Act 1973 contradicts with the provisions of any international treaty or customary international law, the ICT Act 1973 would prevail.

Regarding the applicability of the Bangladeshi Criminal Procedure Code of 1898 and the Evidence Act of 1872, the Prosecution submitted that section 23 of the ICT Act 1973 clearly states that these Acts shall not apply in any of the Tribunal’s proceedings. Regarding the jurisdiction of the Tribunal, the Prosecution asserted that all states have universal jurisdiction over international crimes.

Evaluation of Evidence
The Prosecution argued that the credibility of witnesses must be assessed only in terms of the oral testimony presented before the Tribunal and not by incorporating facts irrelevant to the charge in question. Regarding the inconsistencies between witness’ oral testimony and prior statements made to the Investigation officer or published in a book, the Prosecution referred the Simic, Tadic and Zaric case of the ICTY Trial Chamber, arguing that it supports their position that oral testimony does not necessarily have to be exactly parallel to earlier statements. The Defense argued that Trial Chamber has not treated minor inconsistencies or irrelevant discrepancies in a witness’ testimony and prior statements as entirely discrediting, provided that the witness has testified to the essence of the incident charged in sufficient detail. The Prosecution submitted that the same principle has been applied with respect to discrepancies between the testimonies of different witnesses. They referred to the ICTR Appellate decision in Muhimana to argue that where a Trial Chamber has based its findings on testimony that is inconsistent with prior out of court statements or other evidence, this does not necessarily constitute an error.

The Prosecution rejected the Defense’s argument that the Prosecution failed to produce specific witnesses who might have information in to prove their case. Referring to the ICTR appellate decision in Kajelijeli they asserted that it is entirely speculative and inappropriate for the Tribunal to consider what other evidence could have been brought in support of the case.

Probative Value of a Single witness
Regarding the probative value of a single witness’ testimony, the Prosecution submitted that a conviction can be made relying upon the testimony of a single eye witness even where there is no corroboration. In this case the Prosecution acknowledged that for Charges 1, 7, 10, 14 and 23 they relied upon a single witness’ testimony. They argued that in the decisions against Abdul Qader Molla, Md Kamruzzaman and Ali Ahsan Muhammad Mujahid, Tribunal 2 has relied upon the evidence of single witness for the basis of its conviction. Referring ICTY Trial Chamber case Musema, the Prosecution submitted that the court may rule on the basis of a single witness’ testimony, if in its opinion the testimony is relevant and credible. The Prosecution also referred to the ICTY Appeals Chamber case of Kordic and Cerkez, the ICTY Trial Chamber in Stakic, Simic, Tadic and Zaric, Strugar, Blagojevic and Jokic, Halilovic and Limaj et al and the ICTR Appeals Chamber in Kajelijeli, Rwamakuba, Nahimana, Barayagwiza and Ngeze, Nchamihigo, Bikindi and Zigiranyirazo, as support for the argument that corroboration of evidence is not a legal requirement. The Prosecution submitted that ICTY Trial Chamber in Tadic and the ICTR Trial Chamber in Akayesu and Kamuhanda held that corroboration of evidence is not a customary rule of international law and should not be ordinarily required by the International Tribunals.

Hearsay Evidence
The Prosecution then argued regarding the probative value of hearsay evidence. They noted that Prosecution witness 18 in support of charge 1; Prosecution witness 3 in support of charge 2; Prosecution witness 1, 3, 4, 5 and 18 in support of charge 3; Prosecution witness 3, 12 and 13 in support of charge 4;  Prosecution witness 3 in support of charge 5; Prosecution witness 3 in support of charge 6; Prosecution witness 3, 11 and 20 in support of charge 8; Prosecution witness 9 in support of charge 10; Prosecution witness 23 in support of charge 11; Prosecution witness 3 and 13 in support of charge 12; Prosecution witness 30 in support of charge 14; Prosecution witness 19 in support of charge 17; Prosecution witness 1, 25 in support of charge 18; Prosecution witness 10, 11 and 16 in support of charge 19; and Prosecution witnesses 21, 23 and 33 in support of charge 20 provided hearsay testimony. The Prosecution asserted that the admission of hearsay evidence is allowed under Section 19(1) of the ICT Act and under Rule 56(2) of the Rules of Procedure, 2010. The Tribunal shall use its discretion to determine whether or not to consider hearsay or non-hearsay evidence and to evaluate the reliability and probative value of such evidence at the end of the trial. The Prosecution noted that in the previous decisions against Abdul Qader Molla, Md Kamaruzzaman and Ali Ahsan Muhammad Mujahid, Tribunal 2 has exercised such discretion to admit hearsay evidence.

Furthermore, the Prosecution argued that it is settled jurisprudence under International law that hearsay is admissible. They cited to the ICTY Trial Chamber decisions in Tadic (1996), Blaskic (1998) and Simic, Tadic & Zaric (2003) and ICTR Trial Chamber in Kajelijeli (2003), Kamuhanda (2004), Rwamakuba (2006) and Muvunyi (2006). The Prosecution also submitted that even the High Court Division of the Supreme Court of Bangladesh in S M Qamruzzaman v State, Abul Kashem v State and Shafiullah v State deemed that hearsay evidence is admissible.

Regarding whether corroboration of hearsay evidence is necessary, the Prosecution submitted that the ICTY Trial Chamber in Simic, Tadic & Zaric (2003) held that there is no need to corroborate hearsay evidence with any direct evidence. Once admitted, hearsay evidence can stand on its own to prove that the Accused committed an offence. The Prosecution referred to the ICC Pre-Trial Chamber decisions in Lubanga and Katanga, as well as and the European Court of Human Rights decision in Doorson, as support for their argument that even anonymous hearsay evidence may be used to corroborate other evidence. The Prosecution further submitted that in its recent decision of Ruto, the ICC Pre-Trial Chamber has held that anonymous hearsay evidence alone is sufficient to prove a material fact.

The Prosecution submitted that the ICTR Trial chamber in Kajelijeli and ICTY Trial Chamber in Halilovic and Blagojovic & Jokic have held that in order to assess hearsay evidence, its credibility and relevance should be considered. The Prosecution concluded that the hearsay evidence submitted in this case is both credible and relevant and effectively prove the alleged charges beyond any reasonable doubt.

Old Evidence Rule
The Prosecution additionally argued that the Defense unsuccessfully tried to raise doubt by referring to certain insignificant discrepancies in the oral testimonies of Prosecution witnesses. The Prosecution argued that such insignificant discrepancies in the oral testimony of witnesses is quite natural and does not discredit the witness’ key points. They asserted that the strength of the Prosecution’s case against Salauddin Qader Chowdhury remains unshaken. The Prosecution noted that the ICTR Trial Chamber in Nyiramasuhuko (para 179) and the ICTY Appeals Chamber in Kupreskic held that given the lapse of time it is not always reasonable to expect witnesses to recall every detail of an event with precision. Additionally they argued that it is not unreasonable for the Chamber to accept some but reject other parts of a witness testimony. Given the current trials are taking place 40 years after the commission of the alleged crimes, the Tribunal should not expect the witnesses of this case to recall every detail with precision and to perfectly corroborate each other. The Prosecution submitted that the witnesses testified before the Tribunal according to their natural recollection and that in dealing with old evidence the Tribunal should not get tied up with unnecessary technical rules of evidence.

While the Prosecution acknowledged that in the present case there may be some differences in the witness’ accounts of events, they asserted that all witnesses have clearly testified regarding the basic aspects of the alleged crimes and Salauddin Qader Chowdhury’s culpability in them. It is clear from their testimony that the Defendant played an active role in a joint criminal enterprise that aimed at committing such crimes, and that he bore superior responsibility for the commission of the alleged crimes. The Prosecution asserted that Salauddin Qader Chowdhury was physically present before, during or after the relevant time of occurrence of the alleged crimes, allowing him to be found individually criminally liable, and that he significantly contributed to the commission of the crimes.

Finally the Prosecution referred to the decision of the Special Panels of the Dilli District Court in the trial of Mr Florencio Tacaqui, submitting that the case involved the same issues of old evidence as in Salauddin Qader Chowdhury’s trial. The Prosecution submitted that in that case the Court concluded that to neglect the role of Tacaqui and his status in the militia of Passabe would be a gross blunder and found him responsible for the whole of events committed.

Aggravating Factors
Before concluding its rebuttal the Prosecution argued that the Tribunal should consider certain aggravating factors against Salauddin Qader Chowdhury, including his abuse of his position of influence and authority, the large number of victims; the deaths of women, children and orphans; the young age of victims; the zeal and sadism revealed by accused’s actions; the lack of remorse on the part of the accused; the impact of these events on the lives of victims; the personal participation of the accused in the alleged crimes; the higher educational background of the accused; the seriousness of the crimes; and the false assertion of an alibi and repeated denial of guilt by the accused. (ICTR Appeals Chamber in Kayishema and Ruzindana).

The Prosecution then concluded that they had successfully adduced all relevant evidences to establish that the alleged crimes under the ICT Act 1973 were committed. Additionally they stated that Salauddin Qader Chowdhury bears all three types of liability for the commission of the alleged crimes. They requested that the Tribunal convict Salauddin Qader Chowdhury of the crimes charged and sentence him to the highest punishment allowed without any showing of mercy.