Today the Tribunal heard matters in the following cases:

1. Chief Prosecutor vs. Abdus Sobhan
2. Chief Prosecutor vs. Mobarak Hossain

Prosecutor vs. Abdus Sobhan

In the case against Abdus Sobhan, today was set for further hearing on charge matters. The Defense placed their submission for discharging the Accused Abdus Sobhan from the proposed charges brought against him. Thereafter, the Tribunal set 18 December 2013 for passing an Order on charge matters.

Prosecutor vs. Mobarak Hossain

In the case against Mobarak Hossain, the Defense cross-examined the investigation officer Shyamol Chowdhury, as Prosecution Witness 12. Thereafter, the Tribunal adjourned the proceedings of the case until tomorrow, 25 November 2013.

Discharge Application

The Defense submitted that proposed charges were brought against Abdus Sobhan for torture, abduction, confinement, looting and others crimes that did not constitute an offence under customary international law in 1971. The Defense argued that the proposed charges alleged the Accused for negligence, which cannot be considered as a crime where failure to control is an element of crime under 4(2) of the ICT Act 1973. The Defense further submitted that the Prosecution alleged that the Accused had good relations with the Pakistani army, but this is not enough, to bring a charge; there must be an effective control to bring an allegation, as noted under section 4(2) of the ICT Act 1973. The Defense further argued that attack of arson can come under the head of ‘other inhuman acts,’ but looting cannot be considered as such; to bring allegations of crime against humanity, war crimes and genocide, it is not sufficient to show that the Accused was the acting chief and vice-president of the Peace Committee or that the Accused had a good relationship with the Pakistani Army.

The Defense submitted that to bring allegations under section 4(2) of the ICT Act of 1973 for superior responsibility, there must be a superior-subordinate relationship. The Accused must have effective control over his subordinates which means the material ability to prevent or punish criminal conduct for the alleged crimes of the subordinates. The Accused will be responsible if the Accused is found to be known or had reason to know that the crime was about to be committed or had been committed and if the Accused had failed to take necessary measures to prevent such acts; Muvunyi (Appeal Chamber), August 29, 2009, para 19. The Defense submitted that the proposed charges did not contain sufficient and material facts to bring allegation against Abdus Sobhan for superior responsibility.

The Defense also submitted that to bring allegation under section 4(1) of the ICT Act 1973 for joint criminal enterprise, one has to show the existence of a common purpose, participation or involvement in the execution of that plan. The Defense submitted that the proposed charges did not disclose the nature and degree of the Accused’s participation and that there is no material evidence to bring allegation against Abdus Sobhan for joint criminal enterprise.

The Defense asked the witness about the freedom fighters list—specifically where he collected that list and whether he interviewed the concerned people of that office. The investigation officer replied that he collected the freedom fighters list from the DC office of Brahmanbaria but did not interview anyone from that office. The Defense asked the investigation officer whether he had produced the persons, who had signed different seizure lists, before the Tribunal as witnesses. The investigation officer replied that he did not. The Defense then claimed that Exhibit 3 is a Razakar list, and that page 6, serial no 4, of that list mentioned Abul Kalam Chowdhury as Razakar commander of Brahmanbaria and page 38, serial no 20, of that list mentioned Abdur Rahman as Razakar commander of Akhaura upozilla. The investigation officer admitted this. The Defense additionally claimed that Akhaura was not an upozilla in 1971. The investigation officer admitted that as well and clarified that this list had been made recently. The Defense claimed that this list was made by the Investigation Office, but the investigation officer replied that they collected the list from the DC office. The Defense stated that there was no seal or signature of the DC office on the list. The investigation officer admitted that but added that there is a seal on page 106 which shows that it was forwarded from DC office. The Defense noted that there is no forwarding number on the seal, and the witness agreed with this. The Defense submitted that page 111 and serial no 93 of that list mentioned Mobarak Hossain, Razakar commander of Islampur, Brahmanbaria, but did not say Mobbarak Hossain Razakar commander of Noadil, and did not even mention the names of Mobarak Hossain’s parents. The investigation officer admitted this and added that on page 133, serial no 16 of that list mentioned the name of Mobarak Haji, member of Peace Committee of Noradil, and that page 117, serial no 49 mentioned Mobarak Mia as Razakar of Noadil. The Defense claimed that Mobarak was not Haji (who performed Hajj) in 1971. The investigation officer admitted this as well. The Defense also claimed that on page 115 Abdur Rahman is described as Razakar Commandar of Kendurai of Akhaura. The investigation officer conceded that. The Defense claimed that there is no seal of the DC office in this list and the initial of the list is not readable, to which the Investigating Officer also conceded.

The Defense submitted that the complainant of this case is Khadiza and that she brought allegations against two persons: Jamshed and Mobarak. The investigation officer admitted this. The Defense then asked the witness whether he investigated Jamshed. The investigation officer said that during the investigation, he found the date of birth of Jamshed to be 01-06-1972; because the incident took place in 1971 he did not investigate further. The Defense then claimed that page 36 serial no 7 of the Razakar list mentioned Jamshed Mia, son of Kamu Mia, and his address. The witness acknowledged this. The Defense also claimed that the name of the father of Jamshed, against whom the complainant Khadiza brought allegation, is Kamu Mia and his address is same. The witness admitted that the address is same but added that his father’s name is written as Kanu Mia, and not Kamu Mia