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Kamaruzzaman: Charges, Defences and Judgments
Dhaka, BdChronicle Law Reporter (Md. Kamruzzaman):
Muhammad Kamaruzzaman, now the Assistant General Secretary of Bangladesh Jamaat-e-Islami, a 19 year-old HSC examinee back in 1971, was convicted on Charge No 1, 2, 3, 4 and 7. He was acquitted on Charge 5 and 6. The International Crimes Tribunal (ICT-2) found M Kamaruzzaman guilty on 5 out of 7 charges in total. At the end of the appeal proceedings, he was awarded death penalty in one charge (charge-3), 10 years’ imprisonment in one charge (charge-2) and life-term imprisonment in two other charges (chare-4 and charge-7).
Seven Charges, Defence arguments and the verdict:
Al-Badr Led by Kamaruzzaman captured the unarmed civilian Badiuzzaman at Nalitabari in Sherpur on June 29, 1971. Later, he was tortured and shot dead on the road at Ahammadnagar village and his body was dumped in the river. Kamaruzzaman was charged for murder, torture and other inhuman act as crimes against humanity” caused to Badiuzzaman under section 3(2)(a)(h) read with section 4(1) of ICTA of 1973.
Defence argument on the charge no 1:
The witnesses in the charge-1 were not the eye witness of the killing incident of Badiuzzaman. At the time of killing during the war in 1971, witness Fakir Abdul Mannan was not in Bangladesh, he was in India. After returning home from India, he heard about the killing of Badiuzzaman from someone else. Another witness Dr. Hasanuzzaman also was not the eye witness. He heard about the killing incident from another person. On the basis of that hearsay evidence without any corroboration, none can be convicted by the law of the land.
Summary of the verdict on the charge no 1:
Guilty of the offence of “Complicity’ to commit murder as ‘crimes against humanity’ specified in section 3(2)(a)(h) and is convicted and condemned to a single sentence of imprisonment for life under section 20(2) of ICTA of 1973.
Kamaruzzaman was accused of the offence of “inhuman acts as crime against humanity”. He was liable for capturing the Lecturer of Islamic History at Sherpur College Syed Abdul Hannan in May in 1971, and of parading him half naked through the town under section 3(2)(a)(h) read with section 4(1) of ICTA of 1973.
Defence argument on the charge no 2:
According to our legal code, such witness must be corroborated by the first witness, which prosecutors had failed to do. Only on the basis of hearsay witness without corroboration, the Tribunal awarded the death penalty to M Kamaruzzaman. Even after this failure he was given 10 years of imprisonment which is unacceptable by any international or domestic standards.
The Defense argued that an attack on a victims honor and reputation has not been found to be sufficiently severe so as to constitute a Crime Against Humanity. The Defense compared the facts of the instant case with those in the ICTY case Prosecutor v Mitar Vasiljevic, in which forced detention was found to be a Crime Against Humanity. In that case the court noted that the victim begged for life (para 111) and suffered mental agony (para 112-114). Finally, Ehsan argued that the facts this case also do not support the allegation that the attack on Hannan caused third party mental harm.
Summary of the verdict on the charge no 2:
Guilty of the offence of ‘Complicity’ to commit ‘other inhuman acts’ as ‘crimes against humanity’ specified in section 3(2)(a)(h) of ICTA of 1973 and convicted to the sentence of imprisonment for 10 years under section 20(2) of ICTA of 1973.
Kamaruzzaman was liable for the offence of killing 120 men and raping women of the village, Shohagpur, at Nalitabari in Sherpur on July 25, 1971 under section 3(2)(a)(h) read with section 4(1) of ICTA of 1973.
Defence argument on the charge no 3:
Three widows, Hasina Benu, hafiza Benu and Korfuli Benu, presented by the prosecution gave witness through a camera from separate room, not in front of the court in the court room. They had been widows because of the attack by the Pakistani occupation force. Hasina Benu gave that statement that she had heard from the local people that Muhammad Kamaruzzaman was present there during the attack. Korfuli Benu also made the same statement as Hasina Benu did.
However, neither Hasina nor Hafiza mentioned the name of M Kamaruzzaman during giving the statement before the investigator of the suit previously. Moreover, in an interview given by the same widows in a book titled “The Widows of Shohagpur: 1971” written by Mr. Mamunur Rashid, neither the writer nor the widows including Korfuli Benu had not mentioned the name of M Kamaruzzaman and his involvement for even a single time.
On the contrary, the defence lawyers presented Md Ashraf Ali before the court whose father Md Ekabbar Ali was killed during the attack. Arshad Ali made the statement that M Kamaruzzaman was not involved in any kind of war crimes during 1971.
Summary of the verdict on the charge no 3:
Guilty of the offence of ‘Complicity’ to commit murders as ‘crimes against humanity’ specified section 3(2)(a)(h) of ICTA of 1973 and is convicted and condemned to a single sentence, death penalty, under section 20(2) of ICTA of 1973.
Kamaruzzaman was liable for the offence of gunning down the civilian, Golam Mostofa. He was accused of “Murder as crimes against humanity” and also for ‘complicity to commit such crime’ under section 3(2)(a)(h) read with section 4(1) of ICTA of 1973.
Defence argument on the charge no 4:
In support of the charge, the prosecutors presented two witnesses named Mohan Munshi and Musharraf Talukdar, a brother of Mustafa Talukdar who had been killed in that attack. None of the two witnesses was present at the place of incident. Musharraf Talukdar made the statement that he had heard from his family members and locals that M Kamaruzzaman was present during the incident. But, they are not the eye witness to the incident. The statement given by both Mosharraf and Mohan relating to time, place incident was contradictory to each others. According to an online news report of Banglanews24, when the judge inquired about the contradictions between the two witnesses, the prosecutor replied that it is not an important matter; the only important matter is that whether M Kamaruzzaman was present there or not. Despite contradictory statement, the tribunal handed down the death penalty to Kamaruzzaman.
Summary of the verdict on the charge no 4:
Guilty of the offence of ‘Complicity’ to commit murder as ‘crimes against humanity’ specified section 3(2)(a)(h) of ICTA of 1973 and is convicted and condemned to a single sentence, death sentence, under section 20(2) of ICTA of 1973.
Led by Kamaruzzaman, the Members of the Al-Badr captured Liakat Ali and 11 others from Chawkbazar at Sherpur in the middle of the Ramadan during the war. He was liable for the offence of “Murder as crimes against humanity” and also for ‘complicity to commit such crime’ under section 3(2)(a)(h) read with section 4(1) of ICTA of 1973 for gunning down to 11 civilians.
Summary of the verdict on the charge no 5:
He was not found guilty on the Charge No five.
Members of Al-Badr picked up Didar and several others and took them to the Mymensingh district bungalow in November 1971. They were tortured brutally. Kamaruzzaman was liable for the offence abducting and killing of the civilian named Tunu under section 3(2)(a)(h) read with section 4(1) of ICTA of 1973.
Summary of the verdict on the charge no 6:
He was acquitted of the Charge No five. The court did not find guilty on the charge of killing Tunu.
By the orders of Kamaruzzaman, Al-Badr men surrounded the house of Tepa Miah on the 27th day of Ramadan and killed his son and four others. He was liable for the offence under section 3(2)(a)(h) read with section 4(1) of ICTA of 1973 for the murder of Dara Miah.
Defence argument on the charge no 7:
Defense counsel Ehsan argued that the evidence of the witnesses presented in support of this charge does not show the involvement of the Accused and in no way leads to the conclusion that the victims were killed under Kamaruzzaman’s instructions.
Prosecution witness 1 gave no evidence regarding Kamaruzzaman’s presence at the killing, or any instructions issued by him. Prosecution witness 9 also testified that he heard that victim Dara was brought to the camp and was later killed but provided no information as to how the victim was apprehended or killed. Prosecution witness 15 testified regarding the detention of victims Dara and Tepa Miah but only described the Accused as being involved with their arrest.
Summary of the verdict on the charge no 7:
Kamaruzzaman was awarded life-term imprisonment. Guilty of the offence of ‘Complicity’ to commit murder as ‘crimes against humanity’ specified in section 3(2)(a)(h) of ICTA of 1973 and is convicted and condemned to a single sentence of imprisonment for life under section 20(2) of ICTA of 1973.
Defence sees major violations in the case:
i. The defence filed an application for correct and verbatim recording of the statement of PW1, Md. Hamidul Haque but it was rejected by the order no. 21 of ICT-2. PW1 deposed mentioning the time of occurrence which was in contradiction to the charge brought against the accused. The Tribunal refused to record the date referred to by the PW1.
ii. Many applications were filed to ask questions to the prosecution witnesses which were refused by the Tribunal at the time of cross examination by the PWs. But the tribunal rejected the applications.
iii. The defence filed an application to recall the order taking cognizance and for a full and complete retrial after leaking of the conversation and email between former Chairman of ICT-1, Nizamul Hauqe Nasim and Brussels based legal expert Ahmed Ziauddin. The leaks showed that the proceedings and order of the tribunal were being dictated from abroad. The application was rejected by the order no. 87 of ICT-2.
iv. The defence filed an application seeking recall the order dated 24 February 2013 forcibly closing cross-examination of the investigation officer (PW18), which was rejected by the order no. 120 of ICT-2. The conducting defence counsel could not appear before the tribunal on account of day-long strike and due to such absence, the tribunal forcibly closed the cross examination.
v. At the time of commencement of trial the defence filed the documents in support of defence. The defence also collected more relevant documents to strengthen the defence case and sought permission by an application to adduce the documents as additional evidence. The application was rejected vide order no. 121 but the tribunal also allowed similar application of prosecution seeking permission to file additional documents as evidence.
vi. An application was filed by the prosecution seeking an order limiting the DWs. The application was allowed and DWs were reduced to 5.
Prosecution’s Argument presented in the text of the verdict:
i. Ms. Tureen Afroz submitted the ‘old evidence doctrine’ in reply to the argument of defence, on the issue of ‘inconsistencies’ occurred in testimony of witnesses. Suspicious and inconsistencies may naturally occur in recollecting and articulating of traumatic horrific event, particularly 40 years after the events took place.
ii. For the reason of lapse of long passage of time, witness may not be able recall every detail with precision and to perfectly corroborate to other witness. The Tribunal, in view of above submissions backed by decisions cited, notes that probative value of hearsay evidence is to be weighed in light of context and circumstances related to material facts depicted from evidence led by the prosecution. Hearsay evidence thus can be relied upon to prove the truth of its contents, and the fact that merely the ‘hearsay character’ does not necessarily deprive the evidence of its probative value.
iii. It is also the reality that where a significant period of time has elapsed between the acts for which the accused has been charged, it is not always reasonable to expect the witness to recall every detail with precision. In the case in hand, Prosecution depends mainly on testimony made by the witnesses before the Tribunal, in addition to documentary evidence submitted.
iv. Research shows that human memory only records fragments of events as observed. We are to move towards adjudication of the charges framed, keeping all these aspects in mind.
v. Due to the nature of international crimes, their chaotic circumstances, and post-conflict instability, these crimes are usually not well-documented by post-conflict authorities.
The full text of the Appellate Division judgment was released on February 18, 2015 and the International Crimes Tribunal the following day issued a warrant to execute the death sentence.
On November 3, 2014, the Appellate Division of the Supreme Court upheld the tribunal verdict that had awarded death sentence to the assistant secretary general of Bangladesh Jamaat-e-Islami, the top Islamic party in Bangladesh, for war crimes in 1971.