Wednesday, March 20, 2013

2 Dec 2012: Sayedee defense closing, day 10

The defense close arguments in the case of Sayedee continued on from the following day. (The summary of Sayedee defense closing arguments partly draws from defence lawyer's own notes of proceedings)

Abdur Razaq started by saying that the previous day the tribunal had raised a question about whether there was any similar provision of 19(2) in any of the international Courts. He answered that by saying nowhere in the world is there similar provision of 19(2). In ICTY, ICTR, SCSL and STL there are provisions to allow written statement to be received in evidence. But those provisions provide some important safe guards to the Accused before admitting these types of evidence. These safeguards are absent in our 19(2).He then set out those provisions:
- ICTY, rule 92 bis provides that – the written statements cannot be concerning the act and conduct of the accused. ICTR, rule 92 bis provides similar provision (read out the rules).
- While rejecting our 19(2) review application on 12.07.2012, you have quoted SCSL rule 92 (A) quter and STL Rule 158(A) to find analogies of section 19(2). But Rule 92(B) quter of SCSL was not quoted which provides that ‘If the evidence goes to proof of acts and conduct of an accused as charged in the indictment, this may be a factor against the admission of such evidence, or that part of it’. Rule 158 (B) of STL also provides for similar protections for the Accused which is not also quoted in your order (read out the rules). You may note that all the 19(2) statements of prosecution are relating to the acts and conducts of the accused as charged in the indictment. Admitting this type of evidence will seriously prejudice the accused.
- Great care should be taken in admitting written statements of a witness since it is not made on oath and not tested by cross examination.
- Yesterday we could show you from the safe house documents and other exhibited documents that the 19(2) statements are not at all reliable due to the fraud committed by the investigation officer (IO). So 19(2) statements cannot be taken into consideration in your judgment.
There was then the following interaction
Chairman: if they are not reliable then everything will go. But what if we find that these statements are rightly taken?
Razaq: in that case 19(2) statements cannot be the sole basis of conviction. Charge 1, 2, 3, 4 and 13 are solely based on the 19(2) statements and you cannot find the accused guilty on these statements.
Chairman:-these can be considered but with caution for corroboration.
Razaq: It may be used for corroboration provided you find that they are reliable. 19(2) should be strictly explained. If there is any doubt then the accused will get benefit. We have given sufficient materials to discredit IO. Even 19(2) witnesses have denied giving statement to IO. Regarding evidential value of 19(2) statements we are relying on the following decisions: Windisch Vs Austria- ECHR Series A, para-13, 27th September 1990 - Conviction cannot be solely based on written statements of witnesses: Al- Khawja and Taheri Vs United Kingdom – ECHR 2009; Droson vs Netherlands, ECHR-1996-11.
Elements of Crimes
Razaq then went onto discuss ‘Elements of Crimes’

He said that the accused is charged with 20 counts of Crime Against Humanity (CAH) and Genocide in the Indictment. Mizanul Islam will deal with the factual aspect showing that the Prosecution failed to prove the alleged fact to the required standard. I will deal with the legal issues of these charges and will try to show you that even if the alleged facts are proved the accused cannot be found guilty. You are dealing with international Crimes in a domestic tribunal. In your charge framing order dated 03.10.2011 (Indictment) you have observed that you would look into the customary law in 1971 (time of the alleged occurrences) to find out the meaning of CAH and Genocide. You also observed that you would look into any normative development on the elements of crimes (read out charge framing order page 8 and 9). Now I will show you what was the customary law regarding CAH and Genocide in 1971 and their subsequent developments.
Crimes against Humanity- S 3 (2) (a) of 1973 Act was taken from Nuremberg which was the customary law in 1971. It is also similar to the definition of CAH in Art-5 of ICTY. Though in Nuremberg there was a requirement of ‘nexus with international arm conflict’ in ECCC cases it was decided that this was no longer required in 1975. 
- Though the requirement that ‘the attack must be widespread and systematic’ was not in the ICTY definition the Appeal Chamber in Tadic case (Para 248) held that this is implied in the requirement that the attack should be ‘on civilian population’. You will find support in para 646-658 of the judgement in Tadic Trial chamber. 
Chairman: in no case it was personal attack. During 1971 the whole country was under attack. Can’t we say that, as whole this attack was a part of systematic and widespread attack? 
Razaq: the prosecution failed to adduce evidence before this Tribunal that the attack was ‘widespread and systematic’. Though the prosecution exhibited some newspaper reports showing similar attacks on different parts of the country in 1971, you did not allow us to cross examine on those exhibited documents saying that you would not consider those exhibited news reports in your judgment since they did not include the Accused’s name and incidents of the charges. Thereafter we filed an application to allow us to cross examine the Investigation Officer on those exhibited news reports. But you rejected that application. 
The next requirement is that the attack must be on civilian population. Now you are to decide whether DHS took part in attack on civilians in widespread and systematic way. 
- Our submission is Prosecution failed to prove this nexus. 
- No individual attack is crime against Humanity. It must be on civilians and widespread and systematic. (Balskic Appeal Para 110-113 – meaning of ‘civilian population’.) The accused must have committed any of the listed offence in section 3(2)(a). I will only submit on the elements of the offences in which the Accused is charged. 
Murder: Keang guave eve (duch) – ECCC case (para 331-333) – meaning of murder. The perpetrators must have contributed substantially to the death of the Victim. 
Abduction: In Customary law there no offence named abduction in 1971. The nearest offence is ‘Forceful disappearance’ recognized for the first time in 1996. So you cannot convict the accused on ‘abduction’ since in 1971 there was no such offence in CAH in customary international law. 
Member Justice Anwarul Haq said that we may take the definition of Abduction from dictionary. 
Razaq: it must be available in customary international law in 1971. If not available then the accused cannot be tried for abduction. 
Chairman: we can initiate and the other will follow us. Abduction is listed in our 1973 Act and we find no difficulty to convict the accused if he is found guilty of abduction. 
Razaq: according to the principal of nulam crimen sine lege which is reflected in Article 15(1) of ICCPR you cannot convict the accused for an offence which was not recognized in national and international law in 1971. 
- There was no offence called ‘abduction’ in CAH in Control Council Law No. 10, (20 December 1945). This was the customary law in 1971. No such offence is Nuremberg.
- Draft Code of Crimes against the Peace and Security of Mankind 1996, Article 18(1) recognized ‘Forced Disappearance of persons’ as CAH which may be nearer to ‘abduction’. But the threshold for ‘Forced Disappearance of persons’ is much more higher than ‘abduction’.
- Prosecution could not prove that ‘abduction’ was a CAH in Customary International law in 1971.
Torture: Mere torture of the victim is not sufficient for CAH. The following decisions of ICTY shows that the torture must be for particular purposes as stated in those decisions: (Kvocka Trial Judgment para 143; Kunarak Trial Judgment Para 485. Krnojelac Trial Judgment Para 179,180.; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 Art 1 Para 1 – meaning of torture.
- In Charge no 7, 10 and 13 the above elements are not satisfied, so these Charges should be dropped.
Rape: Relevant Charges- 14, 16, 17 and 18.
- ICC Rome Statute Art 7 (II) g (1) provides elements of rape. Mere allegation of rape is not sufficient. The prosecution must prove beyond reasonable doubt that all the elements of rape are proved. If there is any doubt it should go in favour of for the accused. (Kunarak Appeal Judgment – Para 127-130 – meaning of ‘rape’.)
After the adjournment, Razaq went back to the issues of the 19(2) statement and Safe House documents and refered to the following decisions: 48 DLR 108. Para-11 which he said shows that it does not matter whether the documents come from even if they are are stolen they are admissible so long they are relevant. And All ER (1995) Vol-1 236 PC
Chairman: This depends on whether the documents exist at all. 
Razzaq: we have shown that these documents are impossible to fabricate. The other exhibited documents corroborate the existence of these documents. We showed you that these docs itself contain proof of their existence. By telling that the 19(2) witnesses are unavailable the IO has committed fraud upon this Tribunal. Persons like Shahrier Kabir, Prof Jafor Iqbal and renowned magician Jwel Eich has told the press that they did not give statement to IO. But the IO submitted statements in their names. How we can believe this IO? He lost his credibility. It is clear that he committed fraud upon the court in allowing the 19(2) application. 19(2) order was obtained fraudulently. Fraud vitiates everything: He then refered to the following cases: 45 DLR 502 Fraud upon court; (2008) 12 SCC 353 Para 20; (2007) 8 SCC 751, Para 19
He then said that order obtained by fraud cannot be the order of Court.

Then the following interchange took place:
Razaq: we have proved Sahriar Kabir, Zewel Aich and Zafor Iqbal denied to give evidence.
Chairman: we have not agreed to receive their 19(2) statement.
Razaq: but IO has given report that they are not available.
Chairman: is it sufficient to prove IO has committed fraud? Even if he lied does it proves that he had committed fraud?
Razaq: yes. There are a series of allegation against him. IO has fabricated documents, lied in material points and mislead the Court. All these prove that IO has committed fraud.
Member Justice Jahangir Hossain: What is the definition of Fraud?
Razaq: knowingly makes other’s believe as true which he himself believe to be untrue.
Elements of Rape continued: Razaq then continued with his discussion rape. The prosecution, he said, failed to prove any of these elements.
- PW-4 merely said about rape of Vanu Shaha (Charge 17) and admitted that it was hearsay.
- PW-13 – testified about rape of his three sisters just in one line. Is it sufficient prove all the elements of rape. We have discredited this witness in cross examination.
- PW-23 – testified about rape of his wife – but he admitted that it was hearsay. He did not name the Accused directly. His evidence was sufficiently discredited in cross examiantion
- None of these rape victims came to testify to support the prosecution case.
- Akayasu trial judgment, Para 692- the rape victims testified
- Referred to Kunarak Appeal, para 127-130 and Semanza Trial, para 344-345 concerning the meaning of ‘rape’.
- To convict DHS on this charge all these elements should be satisfied. Actus reas and mens rea should be proved. The prosecution failed to prove these elements.
Other Inhuman Acts: charge 19 is Conversion from Hinduism to Muslim and it does not fall under the category of ‘Other inhuman Acts’. This is residual category. But the act must be serious in nature similar to the other listed offences of CAH. He refered to Cordic Appeal Chamber, para 117. – meaning of ‘other inhuman act’, there must have application of force. Mental or physical harm must be there.

The following exchange took place
Chairman: even if some one is converted from his own religion then also you will say that it does not fall in ‘other inhuman acts’?
Razaq: the prosecution did not adduce evidence that the victims suffered mental and/or physical pain as a result of the conversion.
Chairman: PW 13 said that his parents and family members left for India due to the shame of being converted.
Razaq: But PW 13 did not say that he ever felt shame for being converted. He did not say that he suffered mental pain as a result of conversion. There may be different reason for his family members leaving for India. 
Chairman: if someone is converted against his will even then there is no mental harm?
Razaq: the prosecution must adduce evidence that they suffered mental harm as a result of the conversion and it was severe in nature. There is no such evidence before this Tribunal
Persecution: Relevant Charges- 2,3,6,7,8,9,10,11 and 14. It should be on any of the discriminatory ground – following decisions are relevant: Kuperskic Case para 632-636 – mens rea of persecution, but the prosecution did not produce any evidence of mens rea of persecution: Kordic Trial Chamber para-132 – meaning of ‘persecution’. 
GenocideAbdur Razaaq said that the relevant charges are 2, 12 and 15.
- Genocide in section 3(2) (c) is similar to the definition in Geocide Convention 1948. Art-2 – but two difference –
1. 1948 Convention and all other subsequent definitions of Genocide in other international tribunals include the words ‘as such’ to list the genocidal offences which proves conclusively of the list. But our section 3(2)(c) replaced ‘as such’ by the words ‘such as’ which indicates that the list is not exhaustive and there may be other offences that may come under genocide. So the definition is defective. The meaning of ‘as such’ is given in Niyitegeka Appeal Judgment – ICTR, para 53.
2. Genocide should be on the discriminatory grounds. In 1973 Act genocide can be done on ‘Political’ ground. But in 1971 and till today none of the international, ad hoc or even domestic tribunals recognize that genocide can be committed on ‘political ground’. (Kayishema & Ruzindana trial judgment – ICTR, para 94 and 276 – meaning of ‘genocide’. ) 
Failure to prevent offense (charge-14):Razaq said that there must be 2 elements (Eineinsatzgruppen- iv-TWE-581( 1945)): 1. Knowledge of Crime: 2. Authority to prevent
Every elements must be proven beyond reasonable doubt. He said, relevant cases were: 1. Melosovich case. Para-25; 2. Kupereskik case. Para-190; 3. Mucic celebici- Para 458.

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