Today the Tribunal heard matters in the following cases:
- Pre-trial Proceedings against Mir Qasem Ali
- Chief Prosecutor vs. Salauddin Qader Chowdhury
Today in the pre-trial proceedings against Mir Qasem Ali the Defense resubmitted a request for privileged communication with their client. On 25 July the Tribunal set 28 July and 1 August from 10 am to 1 pm for privileged communication. The Defense notified the Tribunal that its order was not communicated to the jail authority before 28 July and so the Defense had been unable to meet with their client as scheduled. They requested that the Tribunal schedule 4 August in addition to 1 August for privileged communication. It should be noted that the order was passed on Thursday where Friday and Saturday are weekend. The Tribunal granted the request.
In the Salauddin Qader Chowdhury case, the Prosecution concluded its closing arguments on fourth day. Today, 31 July 2013, Prosecution placed their arguments on charge 18, 19, 20 and 23 and on legal issue. Thereafter, Tribunal asked Defense to start their closing arguments from tomorrow and adjourned the proceedings of the case until tomorrow, 1 August 2013.
Chief Prosecutor vs. Salauddin Qader Chowdhury
The Prosecution read Charge 18 which alleges that in the 3rd week of July 1971 early in the morning Shamsu Mia, a close associate of Fazlul Qader Chowdhury and the Chairman of the Muslim League, went to the house of Abdul Motaleb Chowdhury along with three others. They kidnapped Md Salehuddin and took him to Goods Hill in a Pakistani Army vehicle. The charge alleged that Salauddin Qader Chowdhury was present when Md Salehuddin arrived. The Pakistani Army took Salehuddin to the first floor of the garage adjacent to house and interrogated and tortured him. Md Salehuddin lost consciousness and was thrown outside the garage. He allegedly fell in front of Salauddin Qader Chowdhury. It is alleged that Salauddin Qader Chowdhury asked what type of torture had been performed and why Salehuddin was not crying. Salauddin Qader Chowdhury then began torturing Md Salehuddin himself. The victim was kept in a room where there were other detainees also being tortured. Salauddin Qader Chowdhury is accused of confinement, abduction and torture as Crimes Against Humanity under section 3(2)(a) of the ICT Act.
In support of this charge Prosecution relied on the testimony of Prosecution witnesses 1, 8, 25 and 26. Prosecution witness 8, Md Salehuddin, testified that he was abducted by union chairman Shamsu Mia, along with three others. They took him to Goods Hill, home of Fazlul Qader Chowdhury. He testified that he saw Fazlul Qader Chowdhury and his elder son Salauddin Qader Chowdhury there. After they confirmed his identity he was taken to a long room located over the garage beside the house. Hamidul Kabir Khoka and Gena Sekendar entered the room and then they began to punch him indiscriminately. Salehuddin testified that he heard that Khoka was the head of Al-Shams. He stated that they asked him several question about arms and freedom fighters. He told them that he had no involvement but they continued to beat him. He testified that was injured on his lips and face and that he fell on the ground. The Army personal who picked him up beat using a mosquito net stand and broke three over him one by one. He lost consciousness and after half an hour was taken to the ground floor, Salauddin Qader Chowdhury was there and asked why, if he had been beaten properly, he wasn’t crying sufficiently. Salauddin Qader Chowdhury slapped Salehuddin took him to the garage where he was beaten by a hose-pipe until he again lost consciousness.
He testified that after a while Nurul Islam, a senior student of Chittagong University, came to him asked him whether any Muslim League activist or any prominent person of Mohra village would give a recommendation in his favor. Salehuddin told Nurul Islam that Nurul Huda Qaderi, alias Maijha Miah, and Badsha Miah Sawdagar, who were activists in the Muslim League would speak for him. Nurul Islam then left, assuring him that he would talk with Salauddin Qader Chowdhury. That evening Maijha Miah, Sawdagar, and his student Rarun or Rashid came to Goods Hill and told Salehuddin that they had spoken with Salauddin Qader Chowdhury. He was brought to the ground floor where Salauddin Qader Chowdhury told him to return Mohra village and warned him not to leave his house as they were continuing to investigate him. Salehuddin was then given an over-sized shirt and sent back by the same jeep. He returned to Mohra village just after dusk. He stayed there until he had healed and then hid elsewhere.
The Prosecution argued that from the testimony of the relevant witnesses showed that the garage of Goods Hill was used as a torture cell and that Salauddin Qader Chowdhury was the key authority there. Prosecution submitted that the testimony of Solaiman , Prosecution witness 26, collaborated the testimony of Md Salehuddin, Prosecution witness 8.
Md Solaiman, Prosecution witness 26, testified that at the end of July 1971 he learned that Salehuddin had been taken to the Goods Hill by Shamsu, a UP chairman of the nearby village, Pakistani army and some Razakars. He testified that Harun, Badsha Miah Saudagar and Shamsul Huda Maizha Miah went to Goods Hill to see if they could secure his relase. Ultimately they were able to bring back Salehuddin. Solaiman testified that after his return Solaiman and others went to visit him and he told them that following the order of Fazlul Quader Chowdhury, Salauddin Quader Chowdhury and others had tortured him.
Abu Taher Chowdhury, Prosecution witness 25, similarly testified that at the end of July 1971 he learned that Salehuddin had been taken by Shamsu to Goods Hill. Abu Taher testified that he had a plan in his mind to rescue Salehuddin but it was not practically possible. Therefore he requested the Muslim League leader of his village, Badsha Miah Saudagar and Nurul Huda Quaderi, to rescue Salehuddin. He testified that in the next day Badsha Miah Saudagar and Nurul Huda Quaderi went to Goods Hill at about 10 or 11 am and later on brought him back. After his return, Salehuddin told them that Salauddin Quader Chowdhury and others had beaten him due to his failure to provide the whereabouts of the freedom fighters.
Anisuzzaman, Prosecution witness 1, also testified in support of Charge 18. He stated that Salehuddin told him that he had been taken to Goods hill and tortured by Salauddin Qader Chowdhury because they wanted information about the location of the freedom fighters.
Prosecution read out Charge 19 which alleges that on 27 July 1971 at about 8:30 pm the Pakistani Army arrested Nur Mohammad and Nur Alam from Mia Bari of Liakot Ali road and took them to Goods Hill. They were tied with rope tortured for information about their brother Mahbub Alam. Mahbub Alam was then also detained and brought to Goods hill where he was tortured with his brothers. It is alleged that Salauddin Qader Chowdhury took Tk 10,000 as a bribe for the release of Nur Mohammad and Nur Alam. The next day they asked about their brother Salauddin Qader Chowdhury told them that he was sick and could not walk. Nur Mohammad returned with a car but was told that his brother had been killed. Salauddin Qader Chowdhury is accused murder, abduction, confinement and torture as crimes against humanity under section 3(2)(a) of the Act.
In support of this charge the Prosecution relied on the testimony of Prosecution witnesses 35, 10, 11, 16 and 27. Kamal Uddin, Prosecution witness 35, testified that he came to know (did not specify from whom) that Pakistani Army had detained their neighbor Mahbub Alam’s two brothers, Nur Alam and Nur Mohammad. Kamal testified that in the morning of 28 July he went to Mahbub Alam house and confirmed the story. On the evening of 28 July Nur Mohammad and Nur Alam returned home injured. Kamal went and met with them. They told him that the Pakistani Army, helped by Md Yusuf, came to their house looking for Mahbub Alam, but he was not home at that time. Instead, the Pakistani Army detained Nur Alam and Nur Mohammad and took them to Goods Hill. They were taken to their family tea shop at Chaktai where Mahbub Alam was detained. They were all jointly taken to Goods Hill again. They were tortured and eventually Nur Muhammad and Nur Alam were released but Mahbub Alam remained there. Kamal said that Mahbub Alam’s brothers think that Mahbub Alam was killed. The Prosecution submitted that the testimony of this witness remains undisputed after cross-examination.
Kazi Md Nurul Absar, Prosecution witness 10, testified that in June or July he was attempting to find Mahbub Alam. In talking with friends at a gathering on Aziz Uddin informed him that someone similar to Mahbub’s description was brought to his father, Dr Somi Uddin, by Salauddin Qader Chowdhury. Absar said that his friend told him that Chowdhury often took those who were tortured at Goods Hill to Dr Somi Uddin in order to check whether they were still alive or could recover. If there was a possibility that the tortured victim would survive then the he was sent to jail or handed over to other persons, but if it was found that there was no possibility of survival then the tortured victim was destroyed and the victim became traceless. Absar stated that Mahbub Alam had been killed and so they had disappeared him in this way. Aziz Uddin told him that due to torture Mahbubul Alam had no skin; he was tortured on a table which was full of pins.
Foyez Ahmed Siddique, Prosecution witness 16, testified that he heard from late Harun Contractor, who had to go Good Hill every evening to show his attendance, that in the last part of July Mahbub Alam was abducted and taken to Goods Hill. He was tortured there, including on a torture table that was full of pins. The witness stated that Sayed Wahidul Alam led Mahbub Alam’s torture and that Salauddin Qader Chowdhury was present there. He said that Mahbub died as a result of the torture. He testified that he heard about this incident from many others.
S M Mahbubul Alam, Prosecution witness 11, testified that he heard from Kazi Nurul Absar (PW-10) that Mahbubul Alam was tortured to death at Goods Hill. He further testified that Kazi Nurul Absar told him that he heard this news from Aziz Uddin. He also corroborated that the victims of torture at Goods Hill were often taken to Dr Somi Uddin when their condition became very bad and it was unclear whether they would survive or not. If the victim was not going to survive then he would be disappeared.
Prosecution referred to the testimony of Dr AKM Shafiullah, Prosecution witness 27, however the Tribunal said that the testimony of Prosecution witness 27 had no relevancy with the Charge 19.
The Prosecution alleges under Charge 20 that on the 27th or 28th of July 1971 at about 3 or 4 pm, the Razakars arrested Akhlas Mia in front of a shop in Khoka of village Kadur Khali. They took him to Boalkhali CO office at the Razakar camp from where he was taken to Goods Hill. The Prosecution asserted that Salauddin Qader Chowdhury was in charge of Goods Hill and used it as a torture cell. Akhlas was allegedly tortured to death while there. Salauddin Qader is accused of confinement, torture and murder as Crimes Against Humanity under section 3(2)(a) of the ICT Act 1973.
In support of charge 20 the Prosecution relied on the testimony of Prosecution witnesses 21, 33 and Exhibit 97, the out-of court witness statement of Badsha Mia which was admitted into evidence under section 19(2) of the ICT Act 1973. Abul Bashor, Prosecution witness 21, testified that the Razakars detained another freedom fighter named Akhlas in front of a shop in Khoka and took him to Goods Hill. Akhlas’s father was a member of Muslim League who went to Goods Hill after three days with other Muslim League activists and recovered the body of Akhlas.
Mahmud Ali, Prosecution witness 33, testified that at the end of July some Razakars from the CO Office detained Akhlas in Kadurkhil near the shop of Kokai. They first took him to the Razakar camp located at CO office. Thereafter they took him to Goods Hill where Akhlas died because of the torture to which he was subjected. After 2 or 3 days Akhlas’s father brough Akhlas’ body home for burial. Mahmud testified that he attended the Janaza (last prayer) for Akhlas.
Under Charge 23 the Prosecution alleged that on 2nd September 1971 at about 6.15 pm the accomplices of Salauddin Qader Chowdhury tortured one Hindu employee of M Salimullah. Salimullah objected which angered the perpetrators. They threatened Salimullah and thereafter they returned with a team of Sindi police and took M Salimullah to Goods Hill torture centre. He was then tortured throughout the night and finally released in the morning. Salauddin Qader Chowdhury is accused of abduction, confinement and torture as Crimes Against Humanity under Section 3(2)(a) of the ICT Act 1973.
In support of charge 23, Prosecution relied on the testimony of Prosecution witness 2, the victim M. Salimullah. He testified that some employees of Hindu religion worked in their printing press. On 2September 1971 at 6 pm there was a curfew in Chittagong but at 5 pm one of his employees informed him that two of his employees had been beaten after being accused of setting fire to the house of a Bihari. The witness testified that Hamidul Kabir Khoka was the friend of his brother and commander of Al-Shams. He testified that Khoka, Syed Wahidul Alam, Jafor Prokash Mahbub, and Saifuddin (younger son of Fazlul Qader Chowdhury) organized Al-Shams under the leadership of Fazlul Qader Chowdhury and that they were supervised by Salauddin Qader Chowdhury. Salimullah stated that he went to the house of Ranu Babu and Nihar Babu’s house where he found that his two employees were being beaten by Khoka, Jafor and Wahidul. He testified that then his two employees were taken to Goods Hill by a motor vehicle. He testified that then he started to walk to Goods Hill. On the way two motor vehicles coming from Goods Hill appeared. One stopped in front of him and members of the Sindi Police and Khoka picked him up and took Khalifa and him (Salimullah) into the Goods Hill. Once there he was hung upside down and beaten with a rifle by Sindi police. Then Khoka, Wahidul and Saifuddin locked him in the garage. He testified that Khalifa was also tortured there with him. He heard the crying of injured people but eventually lost consciousness. In the early morning he heard shooting. He was told that Fazlul Qader Chowdhury’s sons were practicing shooting and that they sometimes shot people. Around 8 or 8:30 am Khoka arrived accompanied by Salimullah’s nephew Ishaq and friend Shafiqur Rahman. They enetered the garage and Khoka asked his forgiveness and released him. He testified that he asked them to release Khalifa but they did not release him. He said there was never any further trace of Khalifa or of his two employees Dawal and Shawpon. He testified that he presumes that they were killed and their bodies disappeared.
Arguments Regarding Legal Issues
After the lunch break Prosecutor Tureen Afroz placed her submission on legal issue. The Prosecution argued that there was a pattern to the alleged crimes showing targeting of Hindus. Among the 17 charges, when Hindus were targeted they were killed on the spot, whereas when a Muslim was targeted Salauddin Qader Chowdhury entertained interventions and negotioations by outsiders. The Prosecution argued that this display of discriminatory intent is sufficient to prove Persecution as a Crime Against Humanity. In order to prove Genocide one must show the specific intent to destroy the community in whole or in part. The Prosecution argued that the Accused may be found guilty of both Genocide and Persecution under one charge.
The Prosecutor also read out section 16 (1) of the ICT Act 1973 and submitted that there is no requirement to mention the mode of liability in charges brought against the Accused. They argued that under the ICT Act, the accused Salauddin Qader Chowdhury faces three types of liability: firstly, individual criminal responsibility under section 3(2); secondly, joint criminal responsibility under section 4(1) and section 4(2)(a) / (b); and thirdly, superior responsibility under section 4(2) (c) /(d).
Joint Criminal Enterprise
Regarding joint criminal responsibility or joint criminal enterprise (here after JCE), the Prosecution argued that proving joint criminal enterprise requires the Prosecution to prove that:
- a group of people had a common plan, design or purpose to commit a crime;
- that the accused participated in some way in the plan; and
- the accused intended the aim of the common plan.
The Prosecution submitted that if they prove these elements the Accused may be convicted of all completed crimes within the scope of common plan as well as all crimes that he did not intend but were a foreseeable consequence of common plan. The Prosecution referred to the Amicus Curiae Brief of Professor Antonio Cassese and Members of the Journal of International Criminal Justice on Joint Criminal Enterprise Doctrine, December 27, 2008 in Co-Prosecutors vs Kaing Guek Eavalias ‘Dutch’ (ECCC Pre-Trial Chamber).
The Prosecution also submitted that it is not necessary under the ICT Act to categorize or specify the type of JCE alleged as section 4 is silent on such categories. Nonetheless the Prosecution asserted that JCE has 3 forms. The Basic Mode of JCE liability arises when all participants shared the common intent to commit the concerned crime although only some of them may have physically perpetrated the crime. It is liability for acts agreed upon when making the common criminal plan or purpose.
JCE II is the systematic form. The Prosecution argued that the systematic mode of JCE liability is concerned with crimes committed by members of military or administrative units on the basis of a common criminal plan or purpose, for instance crimes implemented in concentration camps or detention centers. The Prosecution submitted that this form of JCE does not require proof of a plan or agreement.
Regarding JCE III, the extended form, the Prosecution submitted that it arises where some crimes have been committed outside of the scope of the common plan or purpose, but liability will still attach where those criminal acts were a natural and foreseeable consequence of the common plan. The Prosecution submitted that Salauddin Qader Chowdhury should be held liable under JCE I on Charges 2, 3, 4, 5, 6, 7, 10, 11 and 12; and liability under JCE II for charge 1 (Goods Hill as a torture camp), 8 (Hathazari Army camp), 14 (Goods Hill torture camp), 17 (Goods Hill torture camp and Chittagong Stadium Army), 18 (Goods Hill torture camp), 19 (Goods Hill torture camp), 20 (Goods Hill torture camp, Boalkhali C.O Office Razakar camp) and 23 (Goods Hill torture camp).
Thereafter, Prosecution submitted their arguments on sentencing. They asserted that there is no scope under the ICT Act to consider the personal circumstances of the Accused. Additionally the Prosecution briefly discussed the testimony of Defense witness 1 (the Defendant) and submitted that his testimony was full of contradictions. They described him as the ‘Rasputin of 1971.’