আলিমের বিরুদ্ধে অভিযোগ

International Crimes Tribunal II

Chief Prosecutor

v.

Md. Abdul Alim

ICT BD Case No. 1/12

CRIMES AND EVIDENCE

Submitted by

Tureen Afroz, Prosecutor

10 September 2013

CRIMES & EVIDENCE

My Lords, the Prosecution brings the following charges against the accused Mr. Md. Abdul Alim:

Charges

Description

Crimes

Mode of Commission

Charge 1

Panchbibi haat Atrocity

CAH by Deportation

Participating, abetting, contributing

Charge 2

Koroi Kadi Massacre

Genocide

Abetting, contributing

Charge 3

Mosque Capture

CAH by Murder

Abetting, contributing

Charge 6

Syed Ali Capture

CAH by Murder

Abetting, contributing

Charge 7

Nowda Capture

CAH by Murder

Abetting, contributing

Charge 8

Khetlal Capture

Genocide

Inciting, abetting, contributing

Charge 9

Khokon Paikar Capture

CAH by Murder

Abetting, contributing

Charge 10

Freedom Fighters Capture

Genocide

Participating, abetting, contributing

Charge 11

Garowal Capture

CAH by Murder

Abetting, contributing

Charge 12

Kashem Capture

CAH by Murder

Abetting, contributing

Charge 13

Freedom Fighters Capture

CAH by Murder

Inciting, abetting, contributing

Charge 14

Fazlul Karim Capture

CAH by Murder

Abetting, contributing

Charge 15

Sugar Mill Capture

CAH by Murder

Abetting, contributing

Charge 16

Sugar Mill Capture

CAH by Confinement

Abetting, contributing

Charge 17

Jabbal Capture

CAH by Murder

Participating, abetting, contributing

CHARGE 1

AMBIT OF CHARGE

My Lords, evidence related to the events of Charge 1 transpires that killing and arson also took place at the Panchbibi Haat Incident of 20 April 1971. However, Charge 1 against the accused Mr. Md. Abdul Alim was brought only for CAH by deportation. Therefore, the Prosecution humbly submits that ‘to meet the ends of justice’ the Honorable Tribunal may consider to exercise its inherent power under Rule 46A of the International Crimes (Tribunal–II) Rules of Procedure, 2012 to include the uncharged crimes (CAH by murder/extermination and/or CAH by Other Inhumane Act) within the ambit of Charge 1 against the accused.

My Lords, it may be mentioned that the Honorable Tribunal in its previous judgments in Md. Kamaruzzaman and Ali Ahsan Muhammad Mujahid has exercised such inherent power to meet the ends of justice.

My Lords, the Prosecution thus submits that similar inherent power may be invoked by this Honorable Tribunal to include the charges of CAH by murder/extermination and CAH by Other Inhumane Act within the ambit of Charge 1.

CHARGE 2

SINGLE EYE WITNESS

My Lords, the Prosecution submits that all four witnesses of Charge 2 were eye-witnesses. Therefore, the question of the said charge being dependent upon single eye witness does not arise.

Nevertheless, My Lords, the Prosecution submits that a conviction can be made relying upon the testimony of a single eye witness and as such, there is no need of corroboration.

My Lords, the Prosecution humbly submits that in the previous decisions of Abdul Quader Molla, Md. Kamaruzzaman and Ali Ahsan Muhammad Mujahid the International Crimes Tribunal II has relied upon the evidences of single eye witness to prove particular charges against the accused.

My Lords, I further submit that the ICTY Trial Chamber in Musema held that the court may rule on the basis of a single testimony, if in its opinion the testimony is relevant and credible. 

My Lords, the Prosecution also submits that the ICTY Appeals Chamber in Kordic and Cerkez, the ICTY Trial Chamber in Stakic, Simic, Tadic and Zaric, Strugar, Blagojevic and Jokic, Halilovic and Limaj et al. and the ICTR Appeals Chamber in Kajelijeli, Rwamakuba, Nahimana, Barayagwiza and Ngeze, Nchamihigo, Bikindi and Zigiranyirazo held that corroboration of evidence is not a legal requirement.

My Lords, I further submit that ICTY Trial Chamber in Tadic  and the ICTR Trial Chamber in Akayesu and Kamuhanda held that  corroboration of evidence is not a customary rule of international law and should not be ordinarily required by the International Tribunals.

Therefore, My Lords, the Prosecution submits that a conviction can be made relying upon the testimony of a single eye witness.

CHARGE 3

HOSTILE WITNESS

My Lords, under the international criminal law there is no hard and fast rule as to how much to rely upon the evidence of a hostile witness.

My Lords, the Prosecution does concede that the provisions of the Evidence Act, 1872 shall not apply in any proceedings brought under the 1973 Act. However, only as a reference an analogy is made to the cases decided under the Evidence Act, 1973 on the issue of hostile witness.

My Lords, the Appellate Division of the Supreme Court of Bangladesh in Shamsur Rahman v State and the High Court Division of the Supreme Court of Bangladesh in Suruj Mia v State held that

‘there is no rule of law that the evidence of witness who has been treated as hostile must be rejected, either in whole or in part, or must be rejected so far as it favors the party calling him or so far as it favors the opposite party.’

My Lords, the High Court Division of the Supreme Court of Bangladesh in Abdus Sukur Mia v State held that:

‘even it there is some discrepancy in the evidence of a witness with regard to some part of the case, for that his entire evidence on the remaining part should not be discarded.’

My Lords, the Prosecution submits that PW 19 was declared hostile by the Prosecution as he refused to mention the name of Reaz Mridha during his testimony. However, My Lords, his count of events to every other detail corroborates the evidence given by PW 15. Therefore, the Prosecution humbly submits that evidence given by PW 19 on relevant details of the event under Charge 3 may be relied upon.

CHARGES 9, 10, 13, 14, 17

STATUS OF VICTIMS

 My Lords, to establish the charge of Crimes Against Humanity, the victims must be proved as civilians.

 My Lords, the term ‘civilian population’ and ‘civilian’ are defined at Article 50 of the Additional Protocol I of the Geneva Conventions, 1949.

 My Lords, the Prosecution submits the ICTY Trial Chamber in Tadic (1997) held that in case of doubt, the victims must be treated as civilians only and therefore, must not be devoid of their civilian protection.

My lords, we submit all the victims of the above-mentioned charges were civilians as the evidence suggests that there was never a resistance at the time of their capture. Therefore, they were civilians and as such, the crimes committed against them fall under the definition of the Crimes Against Humanity.

My Lords, we further submit that following the ICTY case of Jelisic and the ICTR case of Akayesu, if the victim of Charge 17 was a non-civilian, he did fall into the category of hors de combat and as such, enjoyed the protection as civilians.

CHARGES (GENERALLY)

ORAL TESTIMONY VIS-À-VIS PRIOR STATEMENTS

My Lords,  an issue has been raised by this Honorable Tribunal as to how much to rely upon the statements, testified by witnesses before this Honorable Tribunal, which were not disclosed in his/her prior statements made to the IO.

 My Lords, in this regard the Prosecution submits that the ICTY Trial Chamber in Simic, Tadic and Zaric held that:

‘… any oral testimony will not necessarily be exactly parallel to that given in earlier statements; in some instances the prior statements had been made several years before the trial, or questions posed may have been put differently and additional details remembered. In this context, the Trial Chamber has not treated minor inconsistencies or irrelevant discrepancies as discrediting such evidence, provided that the witness has testified to the essence of the incident charged in sufficient detail. The same principle has been applied with respect to discrepancies between the testimonies of different witnesses.’

My Lords, further, the ICTY Trial Chamber in Strugar held that:

‘The Chamber notes that there were times in the course of the trial where the oral evidence of a witness was not identical to the account given in a prior statement. While this called for scrutiny of the credibility of the witness, the Chamber also accepts what has been expressed by other Trial Chambers that “it lies in the nature of criminal proceedings that a witness may be asked different questions at trial than he was asked in prior interviews and that he may remember additional details when specifically asked in court.” A witness may also forget some matter or become confused.’

Further, My Lords, the ICTY Trial Chamber in Limaj et al. held that:

‘The Chamber observes that the seven years that have passed since the events in the Indictment have, in all likelihood, affected the accuracy and reliability of the memories of witnesses, understandably so. There were times, however, where the oral evidence of a witness differed from the account he gave in a prior statement.’

My Lords, similarly, the ICTR Appeals Chamber in Muhimana  held that:

‘Where a Trial Chamber has based its findings on testimony that is inconsistent with prior out of- court statements or other evidence, this does not necessarily constitute an error.