22 September 2013: ICT-2 Daily Summary – Abdul Alim, Prosecution rebuttal and Defense application on extension of bail

Today the Tribunal heard matters in the following case:

  1. Chief Prosecutor vs. Abdul Alim

Tribunal 2 allowed Prosecutor Dr. Tureen Afroz to briefly make closing comments in rebuttal to Defense closing submissions. The Tribunal also heard and rejected a Defense application for the extension of bail of the Accused. The Tribunal then declared that the case of Abdul Alim was to be put as CAV (Curia advisari vult), a latin legal term meaning that the court wished to take the evidence under consideration for a final Judgment.

Prosecution Rebuttal and Closing Comments

Prosecutor Dr. Tureen Afroz advised the Court that she would try to briefly rebut some of the issues raised by the defense, address some of the legal questions raised by the judges during Defense closing submissions, and make submissions on sentencing. The Tribunal asked the Prosecutor to present her submissions very precisely without any repetition and not to reopen any evidentiary matters from the case.

Major Afzal

Dr. Afroz refuted the defense argument that no one named Major Afzal was present in Jaipurhat. She submitted that there is no compelling reason to conclude that there was only one army officer named Afzal who was posted in Beluch Division in some place other than Jaipurhat area. Counsel particularly drew the Court’s attention to witnesses who had referred to the presence of Major Afzal, and claimed that he had a role in atrocities carried out in Jaipurhat belt.

Evidence of DW-2

Dr. Afroz refuted the testimony of DW-2 who said that he had been introduced to Alim in the house where Alim was hiding. The Prosecutor submitted that this testimony was not credible, and was insufficient to establish the defense of alibi. Counsel argued that it was not plausible that the Accused, who was allegedly hiding, would have been introduced to DW-2, who was an outsider.

Interpretation of “forcible transfer”

The Prosecutor submitted that forcible transfer constitutes an offence within the parameters of “other inhumane acts.” Counsel acknowledged that the terms “transfer” and “force” would require judicial interpretation. Unlike deportation, where it is necessary to show that the victim was compelled to leave one state or country for another, forcible transfer can apply even when a victim is compelled to move from one area to another within the country. Counsel for the Prosecution cited ICTY decisions in Simic, Tadic and Zaric, in support of the argument that the requirement of force for forcible transfer does not necessitate physical force, per se. It can also include situations where a victim is forced psychologically, out of fear of facing dreadful fate, to leave one place for another.

Authenticity of photographs

The Prosecutor addressed the Defense doubts pertaining to the authenticity of photographs that had been submitted before the tribunal as evidence. She acknowleged the legitimacy of chain of custody concerns with photographs, generally, but submitted that establishing the chain of custody of each of the photographs starting from the time each was taken to the present was neither practicable nor necessary, so long as the photographs was considered authentic. She submitted that authenticity could be established by any person well-acquainted with the photograph. She also referred to the pictorial photographic theory and said that a photograph may speak for itself in some instances. For instance, she questioned why the Accused would be present in photographs with armed militaries if he was not involved in any way.

Submission on sentencing

With regard to sentencing, Dr. Tureen Afroz stated that lack of remorse on the part of the Accused, the extent of adverse impact on the lives of the victims and their families, and the seriousness of the crimes committed should all be taken into account by the Tribunal, if Alim is found guilty. She further submitted that Alim deserved more severe punishment, because he was a highly educated person. For these reasons, Prosecutors sought a death sentence from the Tribunal for the accused. Dr. Afroz submitted that the age and health condition of the accused should not be a compelling reason to grant a more lenient sentence, because he had not considered age, gender, or health condition while torturing and killing innocent and helpless people during the war in 1971.

Defense application for the extension of bail

After the conclusion of Prosecution rebuttal, the Defense made an application for the bail of the Accused to be extended until the day of the Judgment. Defense counsel Mr. Tajul Islam stressed that Mr. Alim was now over 82 years old, and had been suffering from miscellaneous medical complications due to old age. He has lost his mobility and is dependent on his family members for movement, being confined to a wheelchair. Defense Counsel highlighted the fact that the Accused was the first person to be granted a conditional bail by the tribunal, and since it was granted, he had been present in Court every day, and had never violated the conditions of his bail. There is no chance he will abscond at this point, Counsel argued, so he should continue to remain on bail until the date of final Judgment. The Prosecution opposed the application, arguing that the Accused would receive any necessary heath treatment in the custody of the jail authority.

The Tribunal acknowledged the critical health condition of the Accused as well as the fact that he had never violated the terms of his bail during trial. However, the Court was very concerned about ensuring that the Accused would be present in the courtroom during the pronouncement of the verdict. Given the fact that country-wide Hartals are commonly called on the day of delivery of ICT Judgments, and concerned that this might impede the Accused from getting to court, the Tribunal determined that it would be best if the Accused were kept in custody until the pronouncement of Judgment, so that he could be safely produced before the Tribunal by the jail authority. Accordingly, the Court cancelled the bail of the Accused, and sent him into the custody of jail authority.

This marked the end of Abdul Alim’s trial. Judgment is expected by the Tribunal in due course.