Today the Tribunal heard matters in the following case:

1.    Chief Prosecutor vs. Abdul Alim

Prosecutor Dr Tureen Afroz made her closing submission on points of law before Tribunal 2 in the case against Abdul Alim. Previously, Prosecutor Rana Das Gupta had finished the Prosecution submission on evidentiary aspects of the case. This marked the end of prosecution case against Alim. The defense closing argument is scheduled to commence from 15 September 2013.

During her submission, the prosecutor portrayed the identity and political background of the accused, including his ties with the Peace Committee and Rajakar forces in 1971.  Additionally she discussed question of laws regarding the civilian status of victims, probative value of the testimony of a single eyewitness, effect of inconsistent statements by witnesses, Joint Criminal Enterprise, and liability under the doctrine of superior responsibility.

Prosecution closing submission on points of law

Prosecutor Dr Tureen Afroz started her submission by describing the identity of Mr Alim. She stated that Alim’s liability shall be considered from four types of identity. Firstly, Alim as an individual natural person bearing Individual Criminal Responsibility (ICR) under the 1973 Act; secondly, his liability as the Chairman of Peace Committee; thirdly, his liability as a local influential leader of the Rajakar group; and finally, his liability as a member of the group of perpetrators under the doctrine of Joint Criminal Responsibility (JCE).

 Identity of the accused

Prosecutor Tureen stated that the accused, Abdul Alim, was a resident of Jaipurhat during 1971. He was highly educated and worked as lawyer. He was a front tier leader of the then existing Convention Muslim League and even contested, though unsuccessfully, in the election of 1970 on its behalf. He then won uncontested in the bye-election of 1971 and continued his pro-active political activities throughout the war period. This has been envisaged in the testimony of many witnesses including PW-1, PW-2, PW-3, PW-4 and PW-14, as well as in Abul Kashem’s book Muktijuddhey Joypurhat by Jaipurhat Zilla Proshashok.  Prosecutor Tureen rebutted the statement given by Alim’s son, who testified as DW-3, that Alim went on to hide in the 3^rd week of April, 1971. She submitted photographs taken in June 1971  showing that Alim had submitted nomination paper for attending public elections and that he had active political presence and public participation. According to her, such material evidence dismiss any possibility of him being in hiding during the peak of Liberation War in 1971 and clearly undermines the testimony of DW-3.

 Alim’s nexus with Peace Committee

Dr. Tureen then discussed Alim’s nexus with Peace Committee, also known as the Peace Come Defense Committee. She submitted that there is no room for doubt that Alim was the Chairman or Head of the Peace Committee of Jaipurhat. Prosecution witnesses have either referred to him as the Chairman or organizer of the Peace Committee. Some called him the commander, while others said that he was the head of the Peace Committee. Such references only have linguistic difference of the use of actual term, but all these confirms beyond reasonable doubt that the accused was a leading member of the Peace Committee. This was only furthered by various documentary evidences such as records of Alim’s presence at a meeting on 14.08.2013, newspaper reports such as “Hanadar Bahinir Borborota” (barbarian acts of the brutal forces,), and the Ganotodonta Commission Report 1993, in addition to many other comparatively recent reports.

Dr. Tureen stated that the Defense’s case is that there was a single Peace Committee in Jaipurhat and that its leader was someone else and not Alim. In that regards, the prosecutor contended that the name “Peace Committee” was merely a generic name and there were many Peace Committees in a given area each of which differed from the other either in full title or in organizational affiliation. For example, there was a Citizen Peace Committee, Central Peace Committee, Local Peace Committee, Special Peace Committee, Pakistan Peace and Welfare Council Committee, Peace Come Defense Committee, and Defense Peace Committee.  These were all forms of the generic Peace Committee, amongst many others as outlined by Muntasir Mamun in his book Shanti Committee.  The prosecutor submitted that there were at least two such Peace Committees in Jaipurhat.  Peace Committee formed by the Convention Muslim League was known as Peace Come Defense Committee, as reflected in Abul Kashem’s book Muktijuddhey Jaipurhat accused Alim of being the leader of this Peace Come Defense Committee.

Prosecutor Tureen then went on to discuss the timeline of the formation of Peace Committee. She stated that evidence shows Peace Committee was already in existence on 13 April 1971 under the label of Citizen Peace Committee. She submitted that Convention Muslim League was a pioneer political party that formed its own peace committee on 10 April 1971 upon the formation of a nine member Steering Committee under the leadership of Moulvu Farid Ahmed. The party then directed its own units for its own Peace Committees in local areas. Finally, she submitted that the accused Alim was already the Chairman of the Peace Come Defense Committee by the time the Panchbibi Haat atrocities had taken place on 20 April 2013. The prosecutor also submitted that Peace Committee should also be considered as an auxiliary force akin to that of Rajakar forces.

The Judges then questioned the prosecutor as to whether Peace Committee can be considered as an auxiliary force.  The prosecutor responded by referring to paragraph 582 of Tribunal-2’s decision in Kamaruzzaman. The Judges stated that the observation was regarding Rajakar and not Peace Committee.

 Alim as a member of Rajakar forces

Dr. Tureen Afroz submitted that Rajakar forces existed even prior to the promulgation of the East Pakistan Rajakar Ordinance, 1971 on 2 August 1971. The term Rajakar is a Persian word meaning “volunteer” or “helper”. People who weer Rajakar also made headlines long before its formal endorsement in August 1971. This has been enshrined also in Volume 10 of the Defense documents, at page 346, 347, and 349 of Syed Alamdar Raza’s Dacca’s Debacle. It merely received its formal sanction as a force in August, as may be observed from A A K Niazi’s famous book, The Betrayal of East Pakistan (Karachi, OUP 1998). The prosecutor submitted that the accused was an influential leader of Rajakar militia at the time when Panchbibi Haat atrocities took place on 20 April 1971. She referred to multiple documentary evidences to support her assertion such as Abul Kashem’s book named Muktijuddhey and a report titled “Muktijuddha hottakari Abdul Alim ekhon jonoprotinidhi” (Abdul Alim, the killer of freedom fighters is now people’s representative.

Alim as one of the perpetrators

Finally, Prosecutor Dr. Tureen submitted that even if the prosecution fails to establish Alim’s membership in Peace Committee or Rajakar forces, he shall still be found liable as a member of a group of perpetrators irrespective of his alleged members to the aforementioned forces. This is because his involvement has been established on its own accord by means of the testimonies of prosecution witnesses and documentary evidence.

Status of victims as civilian

Prosecutor Tureen stated that the victims must be proved to be civilians so as to establish the charges against Crimes Against Humanity. She submitted that all the victims of the charges faced by the accused Alim were civilians as per the definition under Article 50 of the Additional Protocol I of the Geneva Conventions, 1949. She submitted that the fact that there was never a resistance on the part of the victims at the time of their capture itself is an evidence to establish their status as civilians. Moreover, Dr. Tureen referred to the ICTY case of Jelisic and the ICTR case of Akayesu and submitted that even in cases where the victim is not a civilian, he may be considered to fall in the category of hors de combat and may be deemed to enjoy the protection as civilians. The benefit of doubt in respect of the civilian status of an individual shall lie with the victims who shall be considered as civilians in case of such doubt or confusion, as held by ICTY Trial Chamber in Tadic.

 Issue of “single eye witness” and its probative value

Dr. Tureen went on to discuss the issue of single eyewitness and its probative value; a question that is of utmost relevance in regards Charge 2. She contended that Charge 2 against Alim is supported by the testimony of four witnesses all of whom testified about the occurrence of the alleged incident although one of them saw the involvement of the accused. She thus submitted that the issue of conviction based on single eyewitness does not even arise in the given fact, particularly when multiple witnesses support it. Nonetheless, she submitted that a conviction can be made in reliance upon the testimony of a single eye witness without the essence of any further corroboration as such. She cited the previous judgments of Tribunal-II of ICT-BD in the cases of Abdul Quader Molla, Md. Kamaruzzaman and Ali Ahsan Muhammad Mujahid. Furthermore, Dr. Tureen referred to the ICTY Trial Chamber’s decision in Musema, whereby it was held that the court may rule on the basis of a single testimony, if the testimony of that single eyewitness is relevant and credible in its opinion.  She further referred to further cases such as ICTY Trial Chamber’s decision in Simic, Tadic and Zaric, ICTR Appeal Chamber’s decision in Kajelijeli, amongst others, which she claims to have ruled out the need of any corroborative evidence as a legal requirement.

Inconsistency with previous statement by witnesses

The prosecutor also addressed the issue of inconsistency of witnesses’ testimony with their previous statements given to the Investigation Officer in the course of their testimony. She submitted that this should not have a negative impact on the credibility of a witness or on the probative value of his/her evidence. Dr. Tureen referred to the ICTY Trial Chamber’s decision in Strugar, whereby the court noted that there can be times in the course of a trial where the oral evidence of a witness may not be identical to the account given by him/her in a prior statement. She stressed that the court observed that it lies in the nature of criminal proceedings that a witness may be asked different questions at trial and that he may remember additional details when specifically asked in court. A witness may also forget some matter or become confused. The prosecutor submitted that this should not be construed as a doubt in the prosecution’s case.

 Joint Criminal Enterprise

Prosecutor Tureen Afroz made summary submission on JCE and adopted the relevant submissions already made before the tribunal in previous cases. She referred to the work of Professor Antonio Cassese on JCE, published on 27 December 2008. The prosecutor, who had been advised by the judges not to repeat discussions on the types of JCE, submitted that an organized group consisting of the Pakistani Army, members of the Peace Committee, members of the Rajakar militia, Biharis, had committed all the alleged crimes in the given case. She reiterated that since Alim was a part of these participants, he comes within the purview of JCE. She further outlined how the requirement of the existence of a common plan, design or purpose has been satisfied. She stated that the target groups pertaining to Charge 2 to 8 belonged to Hindu religion. In Charge 10, the targets were young freedom fighters. Another common pattern, which she identified, is that the victims were captured in one place and were taken to another where they confronted the accused Alim, who either set them free or ordered their execution.

Moreover, the accused was also involved with a number of torture camps such as the Peace Committee Office at Mohon Lal Agarwal’s Office Room in Akkelpur, Shawanlal Bazla’s Godighar/premises in Jaipurhat, army camp in the playground of Khetlal High School in Panchbibi, and the waiting room of Akkelpur Railway Station. This supports his liability under JCE-II, the second form of Joint Criminal Enterprise. Furthermore, most of the alleged crimes had been committed at some designated killing spots such as Kuthibari Ghat, Kural Pukur Ghat, Korai Kadipur, and the victims on few occasions were also forced to dig their own graves. Finally, she submitted that those engaged in humanitarian services, who are given highest protection under the Geneva Convention, had been targeted, including the boatmen in Charge 6 and cart-puller Charge 11.  Finally, she submitted that Alim actively participated in the common design and as such shall, be made liable under the doctrine of JCE. She mentioned that in British Military Courts (Franz Schonfeld and nine others) and German Military Courts (K. and others; Synagogue case), the court took a strict approach in respect to the same and that there had been instances where the court convicted individuals who merely watched the victims being tortured as an approving spectator.

 Superior responsibility

Finally, Prosecutor Tureen addressed the issue of superior responsibility in a precise manner. She stated that there could be more than one superior in a given structure; one identifying and locating the targets while the other ordering to kills. Dr. Tureen Afroz concluded by saying that Abdul Alim was the Crime compass of 1971, who provided the navigational services to the Pakistani army, members of the Peace Committee, members of Rajakar and Bihari forces so that they could commit the alleged crimes. She marked the end of the closing argument on behalf of the prosecution by requesting the accused be sentenced with the highest punishment of death penalty.