This hearing follows directly on from the hearing on 21 September, with Tajul Islam, the lawyer for the defence, continuing to read out from his application as to why Delwar Hossain Sayedee should not be framed for any charges and should instead be discharged.
Charge-framing Hearing continues
Multiple counts: Tajul Islam stated that the proposed indictment has three main headings entitled “First”, “Second” and “Third” and that within the “First” sub-heading, the Prosecution have listed: (1) “murder as a crime against humanity”; (2) “abduction, extermination, deportation, torture and other humane acts as crimes against humanity” and (3) “rape as a crime against humanity”.
He then said that it was unclear as to whether 'the Prosecution seeks to prosecute this as three counts, namely: (1) murder, (2) abduction, extermination, deportation, torture and other humane acts and (3) rape. Or rather whether there are seven counts of crimes against humanity, namely: (1) murder, (2) abduction, (3) extermination, (4) deportation, (5) torture and (6) other humane acts and (7) rape.'
He argued that this uncertainty was in violation of Article 15(1) of the International Covenant on Civil and Political Rights resulting in in a defective indictment.
Insufficient factual basis: He said that under section 16(1) of the 1973 Act, the charges sought by the Prosecution must contain the particulars and facts of an alleged offence as well as the crime of which the accused person is charged in order to “give the accused person notice of the matter with which he is charged”.
He argued that in relation to a number of offences there were not sufficient 'particulars' - that in order to determine whether the facts accord with the crime or the form of participation charged, further information must be provided for by the prosecution within the proposed indictment and that this is necessary as the alleged events occurred forty years ago and must therefore be verified before this tribunal.
He said that the insufficient particulars of offence include the following:
- failing to provide a schedule detailing a list of the names of the alleged victims in the following paragraphs/counts: 16(a), 19(b), 20, 22(b), 24(b), 25 and 26. 'For example, at paragraph 22(b), the Prosecution fails to include the names of the “other numerous women” classed as rape victims. This is compared to the preceding paragraph 22 (a), which identifies other rape victims as “the three sisters of the said Gourongo Saha, being Mahamaya, Anna Rani and Komla Rani”.'
- fails to provide a schedule detailing the location and identifying features of property that has alleged to have been destroyed or looted in the following paragraphs: 7(a) and (b), 8, 9, 10, 11, 12 (b), 13 (a) and 21. For example, within paragraph 12, the 'Prosecution fail to identify the “25 other houses” alleged to have been attacked and destroyed by arson, despite identifying 8 other households within the same paragraph as the households of “Chitto Ronjon Talkuder, Johor Talkuder, Horen Tagore, Moken Tagore, Anik Mondol, Bisha Bali, Shuka Bali, Shotish Bali”'
He said that the specific properties and names of victims are required under Rule 20(1) in order to verify the truth of the fact and the number of victims and properties destroyed. He said that if the prosecution are unable to provide a comprehensive schedule of victims and properties destroyed then the incident must be withdrawn from the count.
- in paragraphs 2, 4, 23, 29 and 30 of the formal charge, a failure to include the specific dates or a relatively small time period within which the fact relied upon is said to have occurred. He said, for example, at paragraph 2, the time frame provided is a day “between 2 May 1971 and 16 December 1971.' This results, he said, in a time period of nearly 8 months to identify the alleged killing of one individual.
He said that the dates to be relied upon by the prosecution are required in order to accurately identify when the crimes are alleged to have occurred and raise the necessary challenge in defence of the accused and that the lack of specified dates is contrary to Rule 20 (1) of the Rules of Procedure. If the Prosecution are unable to provide specific dates for the incidents they rely upon, then they should be prevented from including the event within the indictment,' he argued
- failure in paragraphs/counts 26 (c), 27 and 29, the prosecution fails to specify the ‘group’ intended to be targeted in the commission of the crime of genocide as provided for in section 3(2)(c) of the 1973 Act. 'For example, at paragraph 29 of the proposed indictment, the prosecution do not identify the grouping of the ten people allegedly captured from Hoglabunia Village and taken to a Pakistani Army camp in Pirojpur. This is in contrast to the subsequent paragraph 30, which details that the individuals were all of Hindu faith.'
He argued that that this information is required in order to determine the ‘genocidal intent’ allegedly held by the accused.
Co-perpetrators: He said that in paragraphs/counts 1, 2, 8 and 26 the prosecution fail to name the individuals that were commanded, assisted by or provided assistance to the accused. For example, at paragraph 2 the prosecution fails to identify the individuals that were commanded to kill Bhagirathi of Bagmara Village in Pirojpur.
He argued that 'the general allegation that Sayedee commanded or assisted the Razakar force, Pakistan Army and other auxiliary forces is vague in nature. The names of individuals with whom the accused is alleged to have been abetting and complicit with is required. Furthermore, a detailed hierarchy of any organisational group that the Accused-Petitioner is alleged to have been in connection with is necessary. ... [T]he above information is required in order to determine the precise level of participation and involvement of the accused in the alleged charges.'
Insufficient evidence: He went on to argue that the purpose of an indictment within adversarial proceedings is to establish the charges that the prosecution believes it can prove beyond a reasonable doubt based upon the evidence collected by the Investigation Agency but that at the hearing on 4 September 2011, the prosecution admitted that in relation to the alleged torture and abduction of Abdul Mannan Talkuder on the 17 or 18 May 1971, it did not have sufficient evidence to support this charge.
He argued that although the Tribunal indicated that the charge should not be removed at this stage and be considered at a later date, it would be inappropriate to continue with a charge that is deemed to be unlikely to result in conviction from the outset, as it would be an onerous burden upon the defence who must establish its defence upon each and every count. This requires extra time and resources that would be better focused in other areas, he said.
His final line in the application that Islam read out was that the Tribunal, for the reasons mentioned, should 'issue an order directing the discharge' of his client.
He then read out from the various legal authorities that he had mentioned during the application.
The chairman stated that there was no provision for submitting the proposed charge, though the prosecution had submitted this. He said that the tribunal may or may not accept this and will be framing charge on the basis of formal charge, witness statements and other prosecution documents. He asked the defence lawyer whether he wanted to submit anything on the formal charge and the prosecution documents.
Islam said that the proposed charge is a summary of the formal charge and that the submission on the proposed charge was the same as the formal charge and that he had nothing to add.
Prosecution Response to Defence Application
Below are the main points made by Haider Ali for the prosecution:
- the 1973 Act is passed by our Parliament and there is no objection against this law. Three writ petitions have been filed challenging this law, but in none of the cases was the law declared to be defective. This tribunal is not the right forum to discuss the defects in this law and the law is sufficient to try the offences.
- an individual of an auxiliary force is covered under the Act and this court has jurisdiction over offences committed by him.
- section 3(2) of the 1973 Act has defined crime against humanity and the tribunal will use this definition - but international laws can be used to define the offences with the local law being read together to include the definitions in the international instruments. The international obligations should be followed, but there is no conflict between Bangladesh's domestic law and the international standard.
- although there is no provision for proposed charge in the 1983 Act, the prosecution submitted this for the assistance of the court and it reflects the elements set out in the formal charge document.
- although details of witnesses are required in Rule 20(1) of the Rules of Procedure, they are not being given to the defence for security reason. But these have already been given to the tribunal in the CD and DVD. These detail information on prosecution witnesses will be given to the defence in separate documents later on.
- in response to a query by the tribunal concerning the need for the date of the incident to be specific, Ali admitted that in some cases the the date is not specified as the witnesses are not always victims. He argued that the incidents were 40 years ago and the victims and witnesses did not mention specific date and time of the alleged incidents to the investigator 'and the investigator very honestly did not also mention the date and time. We could have inserted them but due to our honesty we did not.'
The chairman again asked the Ali whether it was the accused’s right to know the specified date of the alleged incident. Ali said that if there was any vagueness then the defence should get the benefit of it during trial. 'The defence should not have raised this point now as it is alerting us. It appears that we are hearing an appeal,' he argued.
The chairman then said that the defence was not arguing that the alleged incidents did not take place. but that the accused was not there.
Justice Fazle Kabir then said that he thought the proposed charge was 'a vague document. The places of occurrences are vague as you did not mention the relevant police station and other identifying features,' he said, On this point, he argued the defence lawyer was correct. Merely saying the name of house or village is not sufficient.'
Ali said that it was not correct that the proposed charge was so vague and that if he thought so he should discharge the accused.
Kabir then asked Ali to show the specifications of places of occurrences in the proposed charge. He said that Islam had mentioned vagueness in count 2 of the proposed charge and suggested that he should read out from there.
The chairman added that in count one, the place is not specific. Ali responded by saying that Parerhat Port is a very well known place and a big port and one need not give the name of the police station
Kabir again said that in count 2 the time of occurrence was vague. Justice Jahir said that in count 6 the name of the offences were not specified. 'You merely listed the offences but did not specify the exact offence committed by the accused' he said.
The chairman then asked whether Ali thought that if we frame charges on the basis of the proposed charge it would be correct?
Justice Jahir asked the prosecution why they submitted a proposed charge when there was no such requirement in the 1973 Act. Ali responded by saying that it was merely a summary of the formal charge for the assistance of the court.
The tribunal was adjourned until after lunch.
After lunch, Ali stated that the places of occurrences, dates, times and manner of committing the crimes are specified in the formal charge, witness statements and other documents, so that there is no vagueness in the allegations.
He said that a series of incidents may contain several offences and that the proposed charge is drafted in that way, but that if the court thinks that it is not specific then it can clarify this
He said that the prosecution was not required to identify the counts and that it could have just mentioned the facts under one heading of crime sgainst humanity.
He said that they had identified witnesses for each count and that when the witnesses come before this tribunal they will clear the vagueness in the proposed charge.
The tribunal then asked Ali how murders can be crimes against humanity as well as War Crimes or Genocide? The prosecution was asked how they should be differentiated?
Ali responded by saying that the formal charge was clear. Genocide is to destroy a community, but for a single incident where the victim is picked up separately it is a crimes against humanity.
Ali was asked whether he meant that genocide was an aggravated form of murder. Ali then read out from section 3(2) of the Act.
Ali then read out section 4(1) and 3(2)(g) of the Act and argued that attempt and abetment were principal offences.
He then said that the accused was leader of the Rajakar and he could communicate with the Pakistani Army as he was fluent in Urdu and Arabic.
The chairman then suggested that the charge did not contain an allegation that the accused was a leader of Rajakar. 'It is only alleged that the accused could communicate with the Pakistani Armies. Show me how he was leader? This is important.'
Ali referred to the last two paragraphs of the witness statement of Ruhul Amin Nobin to prove that the accused was leader of Rajakar and Peace Committee.
The tribunal chairman then asked whether he wanted to say that Sayedee was either the commander or officer of the group?
Ali said that the prosecution materials will show that Sayedee was commander and leader.
Ali said that the accused was no ordinary man at that time. Before 1970 he was a student leader. He was canvassing in favour of a political party in 1970 election. 'We will show by the witnesses during trial that he was a leader as well as commander,' he said.
The chairman asked whether being in control of 'five funds' is sufficient to show that he was a commander? Ali responded by saying that it was one of the ways to show that he was a leader.
The chairman then asked whether forming a Rajakar camp was itself an offence. Ali responded by saying that the camp was related to every offence committed by the accused.
The chairman asked whether if the accused formed the Rajakar camp but the offences were committed by somebody else whether the accused should be liable for those offences.
Ali said that he was not saying that, but that most of the witnesses said that the Rajakar Camp is related to many of the counts and that this formation of Rajakar camp is sufficient to prove that he was a leader and all crimes committed as per his order.
Justice Jahir asked whether any of the incidents would be covered under command responsibility? Ali said that he would show this, and read out section4(2)
Jahir said that for section 4(2) to apply the accused must be a commander or superior officer. Prosecution must prove this. Mere planning or ordering is not sufficient to prove command responsibility and liability under S 4(2).
Ali responded by saying that they would show this at trial.
In relation to the claim about 'insufficient evidence' Ali said that there is some evidence against the accused, but that 'without trial it cannot be said whether it is sufficient or insufficient. The Charge cannot be stopped for this.'
He argued that if there was any contradiction between Bangladesh and international law then the domestic law should prevail. 'I could not find a single conflict between the international law and domestic law.'
He said that there can be three types of witnesses – (i) victim, (ii) eye witness and (iii) circumstantial witness. 'If the prosecution witnesses are week and insufficient then this may be revealed by cross examination. There is no possibility for the defence to be prejudiced,' he said.
Ali then asked that the tribunal be adjourned till the next day. Islam argued that the next day the defence lawyers were busy on a defamation case relating to the Sayedee matter. The tribunal judge said that they could not adjourn the case for another day as there would be a lot of adverse media comment.
In the end the tribunal agreed that the hearing should resume on the 27th but that this would be the final day.