Published: Monday, April 1, 2013

Prosecution Ends Arguments

Death penalty sought for Kamaruzzaman

Completing its closing arguments, the prosecution yesterday sought capital punishment for Jamaat-e-Islami leader Muhammad Kamaruzzaman in connection with crimes against humanity committed during the Liberation War.
“Through verbal and documentary evidence, we have been able to prove the charges beyond any shadow of doubt and in the interest of justice, we pray for capital punishment [of Kamaruzzaman],” Prosecutor Syed Haider Ali appealed to the International Crimes Tribunal-2.
The tribunal fixed tomorrow for recording the defence’s closing arguments. The prosecution may respond to the defence’s arguments if it feels the need. The tribunal would fix the date for delivering the verdict after closing arguments are concluded.
On June 4, 2012, the tribunal indicted Jamaat Assistant Secretary General Kamaruzzaman on seven charges of crimes against humanity allegedly committed during the Liberation War.
Eighteen prosecution witnesses, including the investigation officer, of the case testified. Five people testified for Kamaruzzaman.
On the fourth day of the prosecution’s closing arguments, Prosecutor Haider Ali and Tureen Afroz placed their submission on legal points.
During her one-hour argument, Tureen argued on five legal matters regarding Kamaruzzaman’s case and cited examples from war crimes cases in other countries.
She talked about the admissibility and evaluation of hearsay evidence; defined the ambit of other inhumane acts to constitute crimes against humanity; doctrine on old evidence rule; evidence of a single witness and superior responsibility of Kamaruzzaman.
Tureen said it was very much “settled jurisprudence” of international law that hearsay evidence was admissible and courts in Bangladesh also made hearsay evidence admissible.
Even Tribunal-2 exercised its discretionary power to admit hearsay evidence in the case against Abdul Quader Mollah, said Tureen.
Citing the cases of Blagoje Simic, Miroslav Tadic and Simo Zaric in the International Criminal Tribunal for the former Yugoslavia, Tureen said there was no need to corroborate hearsay evidence with any direct evidence and the hearsay evidence could stand on its own to prove the offence of an accused.
Tureen said in the Ruro case in 2012, the International Criminal Court Pre-Trial Chamber held that “anonymous hearsay evidence” alone was sufficient to prove a material fact.
She said although the prosecution had relied upon hearsay witnesses to prove the first and seventh charge, they were not “anonymous hearsay evidence”.
Tureen said the charge of “other inhumane acts” was framed against Kamaruzzaman for allegedly compelling Principal Syed Abdul Hannan of Sherpur College to walk through the district town after having the latter’s head shaved and his face painted black and white.
The act committed against Abdul Hannan violated the Universal Declaration on Human Rights, 1948, which constituted a serious attack on “human dignity”, said Tureen, adding that the act was offensive to Hannan’s community as a whole.
Explaining the status of a teacher from four religious (Islam, Hinduism, Christianity and Buddism) perspectives, Tureen argued that the act committed against the teacher was not only offensive to the teacher but also to the community as a whole and as such should be treated as an “inhumane act”.
Tureen said the trial was being held more than 40 years after the crimes were committed and witnesses might not have been able to give details of the incidents.
Citing the case against Pauline Nyiramasuhuko at the International Criminal Tribunal for Rwanda and the Kupreskic case at the International Criminal Tribunal for the former Yugoslavia Appeals Chamber, Tureen said with time, it was not always reasonable to expect witnesses to recall details of incidents.
She said the tribunal should consider “fundamental features” to resolve the old evidence issue.
The old evidence issue was related to the second and third charge framed against Kamaruzzaman.
On March 25, the tribunal had asked the prosecution whether they could convict upon the testimony of a single eyewitness and sought precedence.
She said that it was argued that the corroboration of evidence was not a customary rule of international law and should not be ordinarily required by the international tribunal.
Citing the Alfred Musema case at the International Criminal Tribunal for the former Yugoslavia Trial Chamber, Tureen said the court might rule on the basis of a single testimony, if in its opinion the testimony was “relevant and credible”.
The tribunal could convict on the basis of a single eyewitness, she added.
Tureen said there were two elements to establish the superior responsibility of an accused under Section 4 (2) of the International Crimes (Tribunals) Act, 1973.
The elements were: Whether the perpetrators have committed any crimes specified in section 3 of the act? And whether the accused bears “superior responsibility” for commission of such crimes?
Tureen’s conclusion was, “Yes”.
The perpetrators committed crimes like murder, abduction, torture, rape and other crimes specified in Section 3 and the actual perpetrators were the members of Al-Badr group of greater Mymensingh.
She said superior-subordinate relationship and effective control between Kamaruzzaman and the members of Al-Badr group existed.
She said the relationship and matter of effective control could be proved by the testimonies of first, second, third, fifth, eight, ninth, 10th, 11th, 12th, 13th, 14th and 15th prosecution witnesses.
Concluding her submission, Tureen said the activities of Al-Badr in greater Mymensingh could only be compared with that of wolf packs.
She said, as per experts, wolves usually attack the weak first and the Al-Badr men attacked unarmed civilians during the war.
“In 1971, Kamaruzzaman played the role of Nekre Raja [king of wolves] of the Al-Badr in greater Mymensingh and Sherpur,” she said, adding that was why Kamaruzzaman should be tried as superior.
After her submission, Haider Ali placed his submission on some other legal points.
Haider Ali said although there was enough evidence, Kamaruzzaman had not been charged under Section 4 (2) [superior responsibility] of the act.
Citing a section of the rules of procedure of the International Crimes Tribunal-1, Haider said the tribunal could consider Kamaruzzaman’s superior responsibility while delivering the verdict.
The Tribunal asked whether the accused could hold individual liability as well as superior responsibility under the similar set of facts.
Haider Ali replied in the affirmative.
Then the prosecutor tried proving Kamaruzzaman’s superior responsibility by showing documents exhibited by the prosecution.
Later, he said Kamaruzzaman was involved in the planning of and had complicity in all crimes carried out from the Al-Badr camps, founded and controlled by him.
Haider said that the prosecution thinks it was able to prove all the charges and prayed for capital punishment “for the end of justice”.
When the tribunal wanted to fix today for defence closing arguments, Abdur Razzaq, the chief defence counsel, sought time. The tribunal, in response, fixed tomorrow.