Friday, November 11, 2011

Sayedee indictment analysis - charges

This is the first of four posts that relate to the International Crimes Tribunal's 3 October order in which the tribunal 'charge-framed' - or indicted - Delwar Hossain Sayedee.

This particular one looks at the specific charges against Sayedee - which are set out at the end of the 3 October decision. A table setting out the analysis below can be downloaded here.

See my comments at the end of this post.

In the order, the tribunal states that Sayedee will faces 20 counts. This comprises a total of 35 separate offences.

Nine counts (1, 3, 4, 6, 9, 12, 15, 17, 19) involve a single offence; all the others involve multiple offences. Six counts (2, 5, 7, 10, 11, 14, and 18) involve two offences: and four counts (8, 13, 16 and 20) involve three offences.

Four out of the total 35 offences involve the crime of genocide.

These are offences set out in counts 2, 4, 12 and 14. (Counts 2 and 14 also contain offences other than genocide)

Under the International Crimes (Tribunal) Act 1973, the offence of genocide is committed when certain ‘acts’ are done which are ‘committed with intent to destroy, in whole or in part, a national, ethnic, racial, religious or political group.’ The acts include: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part)

Crimes against Humanity:
Each of the remaining 31 offences, set out by the tribunal in its order, allege that Sayedee committed the offence of ‘crimes against humanity.’

In the 1973 Act the offence of ‘crimes against humanity’ is committed when the offences of ‘murder, extermination, enslavement, deportation, imprisonment, abduction, confinement, torture, rape or other inhumane acts’ are ‘committed against any civilian population’ or when there are ‘persecutions on political, racial, ethnic or religious grounds.’

Of the 31 crimes against humanity (CAH) offences set out in the indictment against Sayedee:
- 9 involve ‘persecution’ (counts: 2, 3, 7, 6, 8, 9, 10, 11, 14)
- 6 involve ‘murder’ (Counts: 1, 5, 8, 10, 13, 18)
- 5 involve ‘abduction’ (Counts: 5, 8, 13, 16, 20)
- 5 involve ‘torture’ (Counts: 7, 11, 13, 18, 20)
- 4 involve ‘rape’, (Counts: 14, 16, 17, 20)
- 1 involve ‘confinement’ (Count: 16)
- 1 involve ‘forced conversion’ (Counts: 19)

The nine offences of ‘persecution’ involve allegations that Sayedee looted or destroyed property.

According to the definition in the 1973 Act, it is not necessary to show that the criminal acts of murder, rape etc must be 'part of a widespread or systematic attack against a civilian population’ as is generally required in international law to prove the offence of 'crimes against humanity'. The offence also does not set out what is the 'mental element' required (i.e does the prosecution need to prove intention on the part of the accused, as, for example, the crime of genocide does). (This issue is discussed in a different post)

Witness Numbers:
An interesting set of figures is the numbers of witnesses supporting each count. The number of witnesses supporting each count was not given in the October 3 order: however the number of witnesses can be worked out by cross checking the offences that made it from the draft formal charge (read out on 4 Sept - and about which we know the number of witnesses) into the final charges set out on 3 Oct.

(Nb: It is possible that there may be an error or two in this analysis. Only the defence, prosecution and the tribunal have copies of the witness statements, and only by looking at these can one be entirely sure how the witnesses link to the offences, and indeed how strong they are. Moreover, it is not entirely straightforward meshing the offences set out on 4 Sept order and those on 3 October.)

However the analysis suggests the following

- Four counts (one fifth of the total) have only ONE supporting witness.

These are counts numbers 12, 14, 15, 18. Two of these counts (counts 12, and 15) are offences alleging the crime of Genocide. The other two counts, involve alleged crimes against humanity involving rape/persecution (count 14), and murder/torture (count 18).

It should be noted that at the time of taking cognisance there were three other offences which only had one witness (counts 10, 11, 13 as numbered on 4 September), but they have been discarded. All three of these discarded offences involve persecution (looting) and are relatively less serious offences compared to the ones that have been retained. (see below for full list of discarded offences)

- One count (no. 5) has TWO witnesses. This count involves 2 CAH offences (murder, abduction)

- Four counts (nos 9, 11, 13 and 20) have THREE witnesses each

- Seven counts (nos 1, 2, 3, 4, 10, 11, 17, 19) have FIVE witnesses

- Two counts (nos 7 and 16) have SEVEN witnesses

- One count (no 6) has TEN witnesses. This count involves the offence of CAH (persecution)

- One count (no 8) has FIFTEEN witnesses). This count involves 4 CAH offences (murder, torture, abduction, persecution)

Form of Sayedee's participation in offences:
In only three counts (14, 19 and 20) involving six offences of CAH (abduction, persecution, torture, forced coversion and two involving rape) is Sayedee alleged to have acted totally without the involvement of the pakistan military. In all the other counts, the alleged offences seem to have taken part with their involvement in some way.

In six counts, Sayedee is alleged to have either led the 'peace committee', or members of the peace committee are alleged to have participated in offence (counts: 1, 5, 6, 11, 13, 16.

In six counts, Sayedee is also alleged to have led a group of 'Razakers' as part of the offence (counts 14, 15, 16, 17, 19, 20)

In seven counts, Sayedee is alleged to have operated with a 'group of accomplices' (and in most cases it is stated that the accomplices were 'armed') and not with the 'peace commitee' or 'Razakers': (counts 2, 4, 7, 8, 9, 10, and 12)

Discarded offences:
Out of the original 31 counts which were given cognisance by the tribunal on 14th of July, it seems that 13 offences were not charge-framed. Most of these involved allegations of persecution (i.e looting) though there was one offence of murder and rape not included. The discarded offences are as follows - with CAH meaning Crimes against Humanity. (see this blog to see more details of which offences have been discarded.) The count numbers below relate to the count no as of 14 July

Count 1 (offence unclear);
Count 6 (CAH - general)
Count 8 (CAH – persecution)
Count 10 (CAH – persecution)
Count 11 (CAH – persecution)
Count 13 (CAH – persecution)
Count 14 (CAH – persecution)
Count 15 (CAH – persecution)
Count 16 (CAH – persecution, abduction)
Count 18 (CAH - Torture, abduction
Count 19a (CAH - Persecution)
Count 20 (CAH - Persecution)
Count 22b (CAH - murder, rape)

Dates offences alleged to have occurred
4 May 1971: On this day, counts 1 to 4 are alleged to have taken place involving 5 offences - 2 of Genocide, 3 of crimes against humanity (two of murder, one of persecution)

6 May 1971: On this day count 5 is alleged to have taken place involving two CAH offences (murder and abduction)

7 May 1971: On this day count 6 is alleged to have taken place involve a CAH offence (persecution)

8 May 1971: On this day counts 7 and 8 are alleged to have taken place involving five CAH offences (murder, abduction, torture and two relating to persecution)

2 June 1971: On this day, counts 9, 10 and 11 are alleged to have taken place involving five CAH offences (murder, torture and three relating to persecution)

2 to 3 months after start of war: In this period count 13 is alleged to have taken place involving 3 offences of crimes against humanity (murder, torture, abduction)

One day in the last part of November: In this period count 20 is alleged to have taken place involving 3 offences of crimes against humanity.

'Sometime during the liberation war': In this nine month period counts 12, 14, 15, 16, 17, 18, and 19 involving 2 alleged offences of genocide and 9 alleged offence of crimes against humanity (murder, abduction, torture, confinement, forced conversion, persecution and 3 involving rape) are alleged to have taken place. No specific date or time period within the nine month war when Sayedee is supposed to have committed these crimes is given.

1. It is notable that a significant number of offences were discarded at the time of charge framing (though most of the offences discarded involved the relatively less important allegation of looting). This does suggest that the tribunal did put their minds to the issue of the adequacy of evidence and gave consideration to the defence application.

2. One fifth of the counts (including two offences of genocide) only have one witness in support of the allegation. It is difficult to see how a single witness, unless that person is particularly credible and has very detailed evidence, can provide sufficient evidence to allow for a conviction for as serious a crime as genocide or crimes against humanity.

It is of course notable that three of the offences which had one corroborating witness were not charge-framed by the tribunal.

It is possible of course for the prosecution to call more witnesses in support of their cases - but it is notable how 'cognisance' and 'charge-framing' took place on the basis of one witness .

3. Although 13 of the counts do contain either specific dates or dates during a limited period, seven counts do not contain any particular date period during the war. The defence is very likely to argue that this represents too great a level of vagueness and lack of specificity and make it difficult for Sayedee to defend himself. The defence may well for example, ask how Sayedee could use evidence of an alibi in relation to any of these offences since if he could prove, for example, that he was not at a particular place at a particular time, then the prosecution can simply move the goal posts and say that the incident actually happened at another time.

* For the purpose of clarity, small changes were made to this article on 17 May 2014

1 comment:

  1. Hi David. Thank you for this and your other posts - I enjoy reading your commentary on the Sayadee case. I have one response to your comments on the case. You express concern that it appears that only one witness will testify regarding one fifth of the counts against the Accused. You and your readers may be interested to know that the ICTY, ICTR and SCSL have all affirmed convictions on the basis of single-witness testimony. Moreover, the European Court of Human Rights has confirmed that convictions based on the testimony of a single witness are not automatically regarded as unfair. Finally, most domestic jurisdictions (common and civil law) permit a court to convict on the basis of a single witness. There would seem to be nothing in international (and most domestic) law that would prevent a conviction on the basis of the testimony of a single witness, if that witness appears reliable and convincing to the supervising Judges.

    Of course it remains to be seen how the Judges will regard the witness and, if they base a conviction on his testimony, whether or not they provide a legal justification for doing so...