8 April 2013: ICT-2 Daily Summary – Abdul Alim Prosecution Witness 14

Today the Tribunal heard matters in the following cases:

  1. Chief Prosecutor vs. Abdul Alim – Prosecution witness 14
  2. Chief Prosecutor vs. Kamaruzzaman – Adjournment

Due to a nation-wide hartal our researchers were unable to attend proceedings today. The following summary is compiled from media sources as well as conversations with the Defense and Prosecution.

Chief Prosecutor vs. Abdul Alim
The Prosecution called former Awami League leader Mustafizur Rahman Chowdhury to testify as Prosecution witness 14. The witness testified in support of allegations that Alim worked alongside the Pakistani Army in looting and torching houses at Panchbibi of Joypurhat on 20th April 1971.  The witness  was not at home during the incident, having sought shelter in a relative’s house after he learned that the Accused and other Peace Committee members had warmly welcomed the Pakistani Army in Dinajpur Ghorarghat on the same day. The following day the witness returned home and found that his house had been burned. The witness testified that his family supported the Awami League and had given their support to the Awami League candidate Mafiz Chowdhury, the political rival of Abdul Alim in the 1970 Election. The witness also stated that Alim’s house was later attacked as an aftermath of the incident.

Chief Prosecutor vs. Kamaruzzaman
Kamaruzzaman’s case was listed in the day’s cause list. However, Senior Defense attorney Abdur Razzaq was not present because of the hartal. Tarikul Islam, a junior counsel appearing on behalf of the Accused, informed the Tribunal that the senior counsel remains at home on hartal days and requested adjournment on such days. Although the Tribunal adjourned the proceedings due to the Defense’s absence, it been stressed that hartals should not be used as an excuse for non-attendance.

8 April 2013: ICT-1 Daily Summary – Chowdhury Examination-in-Chief of PW 25 and 26

Today the Tribunal heard matters in the following cases:

  1. Chief Prosecutor vs. Salauddin Qader Chowdhury

The Tribunal heard the Prosecution’s examination-in-chief of Prosecution witness 25, Abu Taher Chowdhury and Prosecution witness 26, Md Solaiman. After recording their testimony the Tribunal adjourned proceedings in the case until tomorrow, 9 April 2013.

Chief Prosecutor vs. Salauddin Qader Chowdhury
Examination-in-Chief of Prosecution Witness 25
The Tribunal first heard testimony from Prosecution witness 25, Abu Taher Chowdhury, a former freedom fighter. He testified that one morning at the end of July 1971 he learned that Saleh Uddin, house tutor of Abdul Motaleb Chowdhury, had been taken by Shamsu, a UP chairman of the nearby village, the Pakistani army and others. The witness stated that as a freedom fighter he tried to find out Saleh Uddin’s whereabouts and learned that Saleh Uddin had been taken to Fazlul Qader Chowdhury’s home at Goods Hill. Abu Taher also testified that he had planned to rescue Saleh Uddin, but that the plan was not practically possible. Therefore he went to the leaders of the Muslim League in his village, Badsha Miah Saudagar and Nurul Huda Qaderi, and asked them to help rescue Saleh Uddin. He testified that in the next day Badsha Miah Saudagar and Nurul Huda Qaderi went to Goods Hill at about 10 or 11 am and were able to bring him back. The witness testified that after Saleh Uddin returned he told them that Salauddin Qader Chowdhury and others beat him because he would not reveal the whereabouts of freedom fighters. Abu Taher testified that Saleh Uddin removed his Panjabi (long loose shirt) to show the injuries he had sustained. The witness stated that he was interviewed by the Investigating Officer on 1 July 2011. He identified Salauddin Qader Chowdhury in the dock.

Examination-in-Chief of Prosecution Witness 26
Prosecution witness 26, Md Solaiman, testified that Saleh Uddin had been staying at the house of Abdul Motaleb Chowdhury as a house tutor. Solaiman stated that at the end of July 1971 he learned that Saleh Uddin had been taken to Goods Hill by Shamsu, the Pakistani Army, and some Razakars. He testified that Harun, a student of Saleh Uddin, found out about his teacher’s abduction and went to Goods Hill along with Badsha Miah Saudagar and Shamsul Huda Maizha Miah. The witness said they were able to bring back Saleh Uddin from Goods Hill. Solaiman testified that after Saleh Uddin’s return, Solaiman and others went to visit Saleh Uddin and that he stated in front of everyone present that he had been persecuted based on the decision of Fazlul Qader Chowdhury and Salauddin Qader Chowdhury. Solaiman testified that he had been interviewed by the Investigating Officer on 1 July 2011. He identified Salauddin Qader Chowdhury in the dock.

7 April 2013: ICT-2 Daily Summary – Mujahid Cross-Examination of PW 17 – Investigating Officer

Today the Tribunal heard matters in the following cases:

  1. Chief Prosecutor vs. Ali Ahsan Mohammed Mujahid

Today the Investigating Officer, prosecution witness 17 Abdur Razzaq, was cross examined by the Defense. They highlighted the various procedural flaws in the investigation process and the underlying deficiencies of his findings, thereby seeking to discredit his testimony.  Proceedings were adjourned before the cross-examination was completed because the witness claimed was feeling unwell. The Tribunal first adjourned until 2 p.m., but the witness did not feel better after the lunch recess and court was adjourned for the day.

Chief Prosecutor vs. Mujahid: Defense Cross-Examination of Investigation Officer
Abdul Razaq is the Investigation Officer for the ICT. He testified as Prosecution witness 17. At the beginning of the cross-examination the Defense asked the witness to verify his personal details including date of birth and year in which he began working for the Police as an investigator.

The witness testified that the investigation into Mujahid began as part of Complaint Registrar case No. 1, on 21 July 2010. The Complaint Registrar case against four accused: Nizami, Mujahid, Kamaruzzaman and Qader Molla. Additionally, the witness testified that he used the judicial record of the Pallabi Case No. 60, which was filed under the regular Penal Code of Bangladesh.

The witness acknowledged that he did not request or receive the Case Diary of the Investigation Officer of the case filed in Pallabi. He also admitted that he did not attempt to determine whether a Police Report was filed in the magistrate level case. The witness testified that informant Amir Hossain Molla named 14 witnesses in the investigation. The Investigating Officer attested that he interviewed each of them. He claimed he was not instructed to separately investigate each of the accused. He acknowledged that Mujahid’s name appeared in the “First Information Report” (FIR), although there was no specific allegation against him. A subsequent FIR however, alleged crimes under Section 3(2). Continue reading →

7 April 2013: ICT-1 Daily Summary, Gholam Azam Defense Closing Arguments

Today the Tribunal heard matters in the following cases:

  1. Chief Prosecutor vs. Gholam Azam: Defense Closing Arguments

Today the Defense continued their Closing Arguments, addressing Charge 3 for incitement and Charge 4 for complicity.

After the lunch break Senior Defense Counsel Abdur Razzak requested an additional working day in order to complete the Defense’s summing up. By mentioning “working day,” the Defense implied a non-hartal day. This week hartals have been called for Monday through Thursday.  The Defense does not attend the Tribunal during hartal days.

Charge 3:
Incitement to Commit Genocide
The Defense addressed each count of incitement contained within Charge 3. First, the Defense argued that none of Gholam Azam’s statements were designed to instigate or prompt others to attack or destroy members of any national, religious, ethnic or racial group. Considering the context of censorship surrounding news reports, the testimony of both Prosecution and Defense witnesses and submitted Exhibits, it is clear that none of  Gholam Azam’s statements, when interpreted according to their plain and ordinary meaning, were directed against members of the Hindu community, the Bengali civilian population or supporters of the Awami League. Secondly, the Defense argued that the Charge Framing Order does not adequately specify how Gholam Azam prompted, provoked or instigated criminal action, nor has the Prosecution brought any evidence on record to show that an identified perpetrator was so instigated, prompted or provoked. Thirdly, the Prosecution has made no attempt to establish that Gholam Azam had the required intention to destroy Hindus, members of the Awami League or the Bengali civilian population. Similarly, the Prosecution failed to prove that through his statements Gholam Azam intended to create genocidal intent amongst members his audience. Therefore the Defense stated that the Prosecution did not prove essential elements of the alleged crime.

Continue reading →

4 April 2013: ICT-2 Daily Summary – Kamaruzzaman Defense Closing Arguments

Today the Tribunal heard matters in the following cases:

  1. Chief Prosecutor vs. Kamaruzzaman: Defense Closing Arguments

The day’s proceeding began with a Defense application for permission to meet with the Accused at the Kashimpur Jail. The Tribunal granted the application and allocated two hours (10:30 a.m. to 12:30 a.m.) on Sunday 7 April 2013 as the tentative date for two members of the Defense counsel to meet with Kamaruzzaman.

Following the defense application, senior Defense counsel for Kamaruzzaman, Abdur Razzaq, continued with the Closing Arguments on the legal issues pertaining to the charge of complicity in the commission of Crimes Against Humanity. The Defense also discussed the evidentiary aspects of Charge 3, which alleges Kamaruzzaman’s involvement the massacre and rape committed at Shohagpur. Razzaq also submitted arguments relating to Charge 2, which alleges the inhuman treatment of pro-liberation intellectual Syed Abdul Hannan. The Defense identified and outlined the substantial contradictions between the testimonies of the relevant witnesses and between their testimony and prior statements to the Investigating Officer.

Complicity in Commission of Crimes Against Humanity
The counsel cited the ICTY Trial Chamber case of Tadic (more specifically paragraph 688 and 689 of the judgment) to claim that the crime of complicity requires intent, defined as awareness of the act coupled with a conscious decision to participate by planning, instigating, ordering, committing, or otherwise aiding and abetting in the commission of a crime. Therefore the Prosecution must prove that the Accused participated in a way that contributed to the commission of the illegal act. The counsel further referred to the I.L.C. Draft Code’s legal findings in the Nuremberg cases whereby it concluded that an Accused may be found culpable if it is proved that he “intentionally commits such a crime” or, if he “knowingly aids, abets or otherwise assists, directly and substantially, in the commission of such a crime.”

The Defense argued no evidence has been given to show that Kamaruzzaman knowingly acted in a way that substantially and directly contributed to the commission of a crime. The Prosecution has failed to prove that Kamaruzzaman had the requisite intent of awareness or knowledge that crimes would be committed or were planned. Nothing has been presented to prove beyond a reasonable doubt that he assisted, instigated, facilitated, or aided and abetted the commission of the alleged offences. Continue reading →