Today the Tribunal heard matters in the following cases:
- Chief Prosecutor vs. Motiur Rahman Nizami
- Chief Prosecutor vs. Zahir Hossain Khokon
In the case of Motiur Rahman Nizami, the Defense concluded their closing arguments. Today the Defense focused on legal arguments. The Tribunal set tomorrow, 20 December 2013 for Prosecution to make rebuttal arguments in the Case.
In the case of Zahir Hossain Khokon, the Prosecution made opening statements. The Prosecution went through all 11 of the charges brought against Khokon for crimes against humanity, genocide, and for attempt, abetment or conspiracy to commit crimes, and complicity in or failure to prevent any such crimes. The Prosecution read out the historical background of the case, describing Khokon as Razakar commander of Nogaorkanda Police Station of Faridpur. The Prosecution further submitted that, in 1971, Knokon was an accomplice to the Pakistani Army and was an activist of Jamaat-e-Islami.
Joint Criminal Enterprise
The Defense submitted that the charges framed under section 4(1) of the ICT Act 1973 are defective. The Defense stated that the Prosecution witnesses only talked about the presence of Nizami at the alleged spot, which is not enough to make Nizami liable under section 4(1) of the ICT Act 1973, since mere presence at the scene of the alleged crime does not amount to participation. The Defense added that participation of the Accused has to be significant and need not be substantial; Brdjanin (Appeals Judgment) para 430; Haradinaj (Trial Judgment) para 138; Kvocka (Appeals Judgment) para 97. The Defense submitted that the participation of the Accused must be such as to have amounted to assistance in or contribution to the execution of the common plan or design; Brdanin Trial Judgment, para 263; Tadic Appeal Judgment, para 227; Stakic Appeal Judgment, para 64; Ntakirutanama, para 466. The Defense also submitted that the Prosecution failed to show the existence of any common plan or Nizami’s participation or involvement in the execution of such a plan. The Defense further argued that the Prosecution failed to show that the Nizami’s mere presence assisted in or contributed to the execution of any common plan. Referring Tadic (Appeals Judgment), the Defense submitted that the Prosecution failed to show any intention of Nizami required to prove Joint Criminal Enterprise (JCE). The Prosecution submitted that the liability of JCE 1, 2 and 3 under section 4(1) has not been established.
The Defense submitted that the charges framed under 4(2) of the ICT Act 1973 are defective. The Defense put forward that, to make Nizami liable under superior or command responsibility, there must be a superior and subordinate relationship between the alleged perpetrator and Nizami, and that Nizami must have an effective control over the perpetrator. Having submitted that the Prosecution witnesses alleged that they saw the Pakistani Army and in some charges Razakars and Al-Badr members commit crimes, the Defense argued that Nizami had no effective control over the Army, Razakars or Al-Badrs. After stating that the Prosecution claimed that members of ICS joined Al-Badr and Nizami was the chief of ICS and Al-Badr, the Defense submitted that they admitted that Nizami was chief of ICS until the end of September but argued that he was not the chief of Al-Badr and did not have any de-facto control over the members of ICS. The Defense submitted that, in different charges, the Prosecution did not even specifically identify the perpetrators and argued that the Prosecution must first show who specifically committed the alleged crimes and then demonstrate superior responsibility; the Defense put forward that the Prosecution could not even prove that Nizami was the chief of Al-Badr. Referring to the cross-examination by the Investigating Officer, the Defense argued that the Investigating Officer admitted that Nizami was a civilian during the Liberation War. The Defense argued that as a civilian, Nizami could not have been the chief of Al-Badr when the Prosecution claimed that Al-Badr was an auxiliary force of the Pakistani Army. They argued that only a president could be commander or superior leader and that the Prosecution failed to show a single reliable document in support of their claim that Nizami was chief of Al-Badr. The Defense added that Nizami’s name was not even found in the list of Al-Badr members or any news reports from The Daily Sangram, and further submitted that the central leaders of Jamaat-e-Islami did not even form the Al-Badr force. Regarding hearsay evidence, the Defense team contended that hearsay must be corroborated by good evidence.