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31 July 2013: ICT-1 Daily Summary – Chowdhury Prosecution Closing Arguments, Qasem Ali Pre-trial

Today the Tribunal heard matters in the following cases:

  1. Pre-trial Proceedings against Mir Qasem Ali
  2. 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
Charge 18
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.

Charge 19
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.

Charge 20
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.

Charge 23
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:

  1. a group of people had a common plan, design or purpose to commit a crime;
  2. that the accused participated in some way in the plan; and
  3. 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.’

13 June 2013: ICT-2 Daily Summary – Alim PW 24

Today the Tribunal heard matters in the following cases:

  1. Chief Prosecutor vs. Abdul Alim

In the Alim case the Prosecution called Prosecution witness 24, Bhagirath Chandra Barman, to testify. After the completion of the examination-in-chief the Tribunal scheduled his cross-examiantion for 16 June 2013. Barman testified as an eye-witness.

Examination-in-Chief
He is a relative of multiple victims. He provided his personal his details. He then stated that Alim was the chairman of Jaipurhat Peace Committee, which he claimed was an auxiliary force to the Pakistani Army. He stated that Alim was assisted by the Pakistani Army and the local Peace Committee members in committing the killings.

The witness stated that on a Monday, approximately in the second week of the Bengali month of Boishakh,1971, the Pakistani Armi entered the village of Kadipur accompanied by local Peace Committee members. Upon seeing them arrive the witness claimed he ran towards his home and then attempted to escape towards the north along with his family members. However, before they could manage to escape, members of the Peace Committee and the Pakistani Army surrounded them.  The witness stated that around 50 to 55 people of the local community were gathered near the bank of a pond located to the east of the witness’s house. The pond is locally known as “Dom Pukur.” The witness stated that the Peace Committee members then segregated the men from the women and took them to the slant of the pond. Continue reading →

27 May 2013: ICT-1 Daily Summary – Nizami PW 9, Mubarak Hossain PW 2

Today the Tribunal heard matters in the following cases:

  1. Chief Prosecutor vs. Motiur Rahman Nizami
  2. Chief Prosecutor vs. Mubarak Hossain

In the case against Motiur Rahman Nizami , Defense counsel Mizanul Islam conducted cross-examination of Prosecution witness 9, Aynul Haque, who testified in support of Charge 2. Thereafter, the Tribunal adjourned the proceedings of the case until 2 June 2013.

In the case against Mubarak Hossain case, the Tribunal heard the examination-in-chief of Prosecution witness 2, Khodaza Begum. Thereafter, the Tribunal adjourned the proceedings of the case until tomorrow 28 May 2013. Continue reading →

31 March 2013: ICT-2 Daily Summary – Kamaruzzaman Prosecution Closing Arguments

Today the Tribunal heard matters in the following cases:

  1. Chief Prosecutor vs. Muhammad Kamaruzzaman – Prosecution Closing Arguments

Because the Tribunal Judges were attending the oath taking ceremony for the newly appointed Judges of the Appellate Division for the Supreme Court of Bangladesh, proceedings did not begin until 12pm. The Chairman of Tribunal 2, Justice Obaidul Hossain, was absent and Justice Mozibur Rahman Miah chaired in his place.

The Judges allocated an hour to Prosecutor Tureen Afroz to make submissions pertaining to the points of law relevant to the case against Kamaruzzaman. She addressed five legal issues: the admissibility and probative value of hearsay evidence, the definition of “other inhuman acts” constituting Crimes Against Humanity, the doctrine of the “Old Evidence Rule,” the probative value of testimony from a single eye-witness, and the liability of the Accused under the doctrine of Superior Responsibility. In her submission, Prosecutor Afroz cited to decisions from the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Court (ICC), which form part of Customary International Law. After these arguments Prosecutor Haider Ali closed the prosecution’s case after addressing points of domestic law and procedure.

Admissibility and Probative Value of Hearsay Evidence:
Charge 1 against Kamaruzzaman pertains to the killing of Badiuzzaman. The Prosecution noted that the allegations are supported only by the testimonies of Prosecution witnesses 4 and 6, both of whom are hearsay witnesses. Charge 7, which pertains to the killing of six unarmed civilians, is similarly solely dependent upon hearsay statements given by Prosecution witnesses 1 and 15. The Prosecution acknowledged that they have submitted hearsay statements to prove the guilt of the Accused on other charges as well.

Prosecutor Afroz stated that because hearsay evidence is less reliable, the question of its admissibility has been the subject of much debate in national and international legal doctrine. She noted that the Bangladeshi Evidence Act of 1872 limits the situations in which hearsay evidence is admissible. However, given the fact that the Bangladeshi Evidence Act of 1872 does not apply to proceedings of the International Crimes Tribunal Bangladesh, the issue of the admissibility and probative value of hearsay evidence remains indistinct. In order to determine how the Tribunal should deal with hearsay evidence, the Prosecution submitted arguments on three aspects: (a) whether hearsay evidence should be admitted, (b) where admitted, whether hearsay evidence needs to be corroborated by other evidence and (c) how the Tribunal should assess hearsay evidence.

Should Hearsay Evidence be Admissible
Ms Tureen Afroz submitted hearsay evidence is not inadmissible per se, even in situations when the source of the evidence cannot be examined and/or the evidence is not corroborated by direct evidence.  Prosecutor Afroz cited to the decisions of ICTY Trial Chamber in Tadic (1996), Blaskic (1998) and Simic, Tadic & Zaric (2003), as well as in the decisions of ICTR Trial Chamber in Kajelijeli (2003), Kamuhanda (2004), Rwamakuba (2006) and Muvunyi (2006) in support of this argument. In light of these decisions, the Prosecution claimed that it is settled in international jurisprudence that hearsay evidence may be admissible.  Furthermore, the Prosecution argued that the ICTY Appeals Chamber in Aleksovski (2000) and Kordic & Cerkez (2004), as well as the ICTR Appeals Chamber in Rutaganda (2003) held that the Trial Chambers have broad discretion in determining hearsay evidence to be admissible. Prosecutor Afroz argued that because Tribunal 2 has already exercised such discretion to admit hearsay evidence in the Abdul Quader Molla (2013) case, Tribunal 1 should follow that precedent in considering hearsay statements against Muhammad Kamaruzzaman.

Tureen also cited precedents of domestic cases of Bangladesh in which the High Court Division admitted hearsay evidence. These include the decisions in Abul Kashem v State, 42 DLR 378, S M Qamruzzaman V State, 33 DLR 156 and Shafiullah v State, 1985 BLD (HC) 129(a).

Where Admitted, Must Hearsay Evidence Be Corroborated?
The Prosecution argued that once hearsay evidence is deemed admissible, it may be sufficient on its own to prove the guilt of the Accused and does not require corroboration by direct evidence. Prosecutor Afroz stated that this is supported by the decision of the ICTY in the Trial Chamber’s decision in Simic, Tadic & Zaric (2003).

Furthermore, the Prosecution stated that the ICC Pre-Trial Chamber in its recent decision Ruto (2012) held that anonymous hearsay evidence alone may be sufficient to prove a material fact. They also asserted that the ICC Pre-Trial Chamber decision in Lubanga (2007) and Katanga (2008), and the European Court of Human Rights decision in Doorson (1996) confirms that anonymous hearsay evidence can be used to corroborate other evidence. The Prosecution argued that no corroboration by direct evidence should be required to prove Charges 1 and 7 and submitted that while the Prosecution is relying on the hearsay statements of Prosecution witnesses 1, 4, 6 and 15, they are not anonymous hearsay statements. Prosecutor Afroz said that the witnesses revealed the specific names of the original declarant/witness and appeared in court for cross-examination by the defense.

How Should Hearsay Evidence Be Addressed?
The Prosecutor cited to the ICTR Trial Chamber’s decision in Kajelijeli (2003) and the ICTY Trial Chamber’s decision in Halilovic (2005) and Blagojovic & Jokic (2005) whereby it was held that in order to assess hearsay evidence, two important criteria should be considered: firstly, the credibility of the evidence and secondly, the relevance of the evidence. Prosecutor Afroz submitted that the hearsay evidence provided by Prosecution witnesses 1, 4, 6 and 15 is both credible and relevant and thus proves Charges 1 and 7 against Mr. Kamaruzzaman beyond a reasonable doubt.

The judge pointed out that there were discrepancies between the testimony of Prosecution witness 15 and the Prosecutions case, highlighting that the incident had allegedly taken place in Ramadan when the witness was detained at the camp and therefore it would not have been possible for him to witness the incident. The Judge stated that this cast doubt on the credibility of Prosecution witness 15. 

In response, the Prosecution asserted that the Tribunal may convict the Accused based on the testimony of one hearsay witness alone if it finds the testimony of witness 15 to be unreliable.

“Other Inhumane Acts” Constituting Crimes Against Humanity
Charge 2 against Kamaruzzaman concerns allegations of inhumane acts and torture against Mr Syed Abdul Hannan, the then principal of Sherpur College. Even though Section 3(2)(a) of the International Crimes (Tribunals) Act 1973 refers to “other inhumane acts” as a Crime against Humanity, the term is undefined in the 1973 Act itself. The Prosecution then sought to (a) provide a definition of “other inhumane acts” amounting to a crime against humanity and (b) assess whether the acts committed against Syed Abdul Hannan meet that standard.

The Prosecution sought to borrow the definition of “other inhumane acts” from international jurisprudence. Prosecutor Afroz submitted that although the definition of Crimes Against Humanity was initially limited to acts committed during an armed conflict, the definition was later extended to include crimes during times of peace as well. Therefore she argued, the definition of the offense has changed significantly from time of the Nuremburg Charter to the Rome Statute.  The Prosecution submitted that the definition therefore should be derived from humanitarian law and principles of human rights law as laid down in the Universal Declaration on Human Rights of 1948 (UDHR), the International Covenant on Economic, Social and Cultural Rights, 1996 (ICESCR). Additionally, Prosecutor Afroz noted that “other inhumane acts” have been specifically addressed as “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health” in Article 7(1)(k) of the Rome Statute of the International Criminal Court, 1998.

The Prosecution submitted that this definition accords the court broad discretion to determine whether a particular act constitutes an inhumane act. They listed a number of acts determined to be within the confines of the term: including certain types of sexual violence (Akayesu (ICTR Trial Chamber), September 2, 2001, para. 688 and Furundzija (ICTY Trial Chamber), December 10. 1998, para. 209,) forcible transfer of people (Kupreskic (ICTY Trial Chamber), January 14, 2000, paras. 565-566; Krstic (ICTY Trial Chamber), August 2, 2001, para. 523; Brdjanin (ICTY Trial Chamber), September 1, 2004, para. 544 629-630];  desecration of corpses (Niyitigeka (ICTR Trial Chamber), May 16, 2003, paras. 462-463 & 465); attempted murder (Vasiljevic (ICTY Trial Chamber), November 29, 2002, para. 239), extensive destruction of property (Saddam Hossain Trial (Iraqi High Tribunal) referred to in Terhi Jyrkkio, ‘Other Inhumane Acts as Crimes Against Humanity,’ 1 Helsinki Law Review 183, (2011) at p. 202-203) and forced marriage (AFRC (Special Court of Sierra Leone Trial Chamber), February 22, 2008, paras. 186 & 195).

Whether the Acts Committed against Mr. Syed Abdul Hannan Falls within the Definition of “Other Inhumane Acts”
The Prosecution submitted that the acts committed against Syed Abdul Hannan violated Article 5 and Article 12 of the Universal Declaration on Human Rights of 1948 (UDHR). Article 5 states that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” and Article 12 states that “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks”.

Prosecutor Afroz argued that the act committed against Syed Abdul Hannan constitutes a serious attack on his “human dignity,” as derived from the decision in Vasiljevic (ICTY Trial Chamber), November 29, 2002, para. 239). Furthermore, the Prosecutor stated that the act was also offensive to members of Syed Abdul Hannan’s community as a whole, and could therefore be categorized as “Third Party Mental Suffering Syndrome” (as established in Kayishema (ICTR Trial Chamber), May 21, 1999, para. 153; Niyitigeka (ICTR Trial Chamber), May 16, 2003, paras. 462-463, 465; Kamuhanda (ICTR Trial Chamber), January 22, 2004, para. 718; and Kajelijeli (ICTR Trial Chamber), December 1, 2003, para. 933]. To support her submission, Ms. Afroz also cited verses from the Quran, the Holy Bible and also referred to Hindu and Buddhist Scriptures to show the importance of education in Bangladeshi society. Therefore she submitted that attacking and shaving the hair of the head of an educational institution was truly an inhumane act given the socio-religious culture of Bangladesh.

Doctrine of “Old Evidence Rule”
The Prosecution next presented arguments on the “Old Evidence Rule.” Prosecutor Afroz admitted that many discrepancies have arisen in the oral testimony given by witnesses. These include discrepancies in the dates, circumstances surrounding an incident, the number of victims and other miscellaneous inconsistencies. The Prosecution submitted that it is not always reasonable to expect the witnesses to recall every detail with precision, and argued that this has been recognized by the ICTR Trial Chamber in Nyiramasuhuko (2011), para 179 and the ICTY Appeals Chamber in Kupreskic (2001), para 35. Prosecutor Afroz further submitted that the recollection of the witnesses may have been adversely affected by stress-related disorders caused by the incident, as recognized by the ICTR Trial Chamber in Kamuhanda (2004), para 34. She acknowledged that discrepancies may arise because of the lapse of forty years between the incident and the time of testimony, the possible distortion of a witness’ individual recollection due to the impact of collective memory (as dealt with by the Special Panels for Serious Crimes in East Timor in the Tacaqui decision (2004), para-42), and associated cultural factors. However, she argued that the Tribunal should nevertheless consider the fundamental features to resolve the “Old Evidence Issues,” as suggested by the ICTY Appeals Chamber in Celebici (2001); para 485 & 496.

Upon being asked by the Judges how the Prosecution would explain the various discrepancies and inconsistencies in the testimonies of the prosecution witnesses, Prosecutor Afroz submitted that they should be overlooked and dealt with in a lenient fashion in consideration of the “Old Evidence Rule,” especially because forty years have already elapsed and may have somewhat affected the ability to remember and recall the events accurately.

Evidence of Single Eye-Witness
The Prosecution submitted that a conviction can issue in reliance on the testimony of a single eye-witness, and thus corroborating evidence is not required under Customary International Law and should not be required by the Tribunal. Prosecutor Afroz referred to the decision of ICTY Trial Chamber in Musema (2000), whereby it was held that the court may rule on the basis of a single witness’ testimony if it is of the opinion that the testimony is both relevant and credible.

Superior Responsibility of the Accused
The Prosecution then turned to the concept of Superior Responsibility which they argued is derived from the military doctrine of Command Responsibility. Prosecutor Afroz submitted that under the Doctrine of Superior Responsibility it is not necessary to show that Kamaruzzaman ordered the commission of Crimes Against Human, but means he may be liable where he as a leader failed to control his subordinates, prevent the commission of crimes or punish perpetrators under his command. The Doctrine is thus based on the the duty to meet the minimum standard of responsibility for leaders and commanders with respect to the conduct of their subordinates. The Prosecution argued that Kamaruzzaman, as the leader of Al-Badr in his region, failed to discipline and control his subordinates, and failed to prevent them from committing crimes.

Due to limitation of time, the Prosecution summarily referred to historical landmark cases applying the Doctrine of Superior Responsibility. The counsel stated that from the first recorded war crimes trial of Peter Von Hagenbach Trial (1474) for failing to prevent the atrocities committed by his men during the Swiss-Burgundian War, to the post World War-I Leipzig Trial (1921), and the post World War-II Nuremburg Trials (1945-946) and Yamashita Trial (1945, the Doctrine of  Superior Responsibility has been widely recognized. Additionally, the Prosecution argued that the Doctrine has now been expressly incorporated to international legal instruments, including Article 86 and 87(1) of the Additional Protocol I of the Geneva Conventions of 1949, Article 7(3) of ICTY Statute, Article 6(3) of ICTR Statute, and Article 28 of Rome Statute.  

Finally, the Prosecutor Afroz referred the Tribunal to Section 4(2) of the International Crimes (Tribunals) Act of 1973, which as per her submission imposes a standard of strict liability on commanders and superior officers with no requirement of knowledge. Therefore she stated that the Tribunal only needs to determine whether perpetrators committed crimes specified in Section 3 of the 1973 Act, and if so, whether Kamaruzzaman bears “superior responsibility” for the commission of such crimes. Prosecutor Afroz argued the Tribunal should answer both questions affirmatively, asserting that a superior-subordinate relationship existed between Kamaruzzaman and members of Mymensingh and Sherpur area Al-Badr group during 1971.

Prosecutor Afroz concluded that Al-Badr members were the wolves during the Liberation War and Kamaruzzaman acted as the wolf king who specifically targeted unarmed innocent civilians.

Further Prosecution Arguments
Kamaruzzaman’s Role
Following Prosecutor Afroz’s submissions, Prosecutor Haider Ali concluded the Prosecution’s Closing Arguments. He submitted that Kamaruzzaman received the Pakistani Army upon their arrival in Mymensingh and was a front tier leader of Al-Badr. In outlining his position as a leader and the extent of his participation, the prosecutor Haider Ali claimed that all local operations of the Pakistan Army in that area were conducted in consultation with the Accused.

Relationship between Section 19 and Section 8(9) of the ICT Act of 1973
In the second part of his argument, Prosecutor Haider Ali tried to show the connection between Section 19 and Section 8(9) of the 1973 Act. He conceded that although newspapers are not admissible in regular domestic proceedings, they are admissible in the proceedings of the ICT because Section 19(1) states that the Tribunal “shall not be bound by technical rules of evidence” and that it “may admit any evidence, including reports and photographs published in newspapers, periodicals and magazines, films and tape-recordings and other materials”.  The counsel asserted that there is a nexus between Section 8(9) and Section 19 in that any evidence presented before the court must be deemed to have been submitted in accordance with the 1973 Act and therefore is to be considered fit and proper. Section 8(9) states that “any investigation done into the crimes specified in Section 3 shall be deemed to have been done under the provision of this Act.”

Liability under Section 4(2) in All Charges
Finally, the Prosecution cited to provisions from the Rules of Procedure for Tribunal 1 and submitted that even though the accused has not been charged under Section 4(2) in a numbe of the Charges against him, the Tribunal may still find him liable under Section 4(2) in those charges for Superior/Command Responsibility in addition to finding the accused individually liable.

Prosecutor Haider Ali concluded his submission by saying that the Prosecution has been able to prove the case beyond the slightest doubt and therefore Muhammad Kamaruzzaman should be found guilty on all counts and should face the highest penalty of death sentence under Section 20(2) of the 1973 Act.

Administrative and Procedural matters
After the end of the Prosecution’s Closing Arguments, Mr Abdur Razzaq, the senior Defense counsel, appeared before the court and requested an adjournment for eight days before beginning the Defense’s Closing Arguments. Mr Razzaq, who is also acting as the senior Defense counsel for Gholam Azam, Nizami, Sayedee and Qader Molla stated that he has to attend the ongoing proceedings in Tribunal I as well as the Appellate Division and henceforth needs time to sum up the instant case. The presiding Judge asked the Counsel to begin his submissions on 2 April 2013, but assured him that the court will accommodate his schedule so far as is practicable.