Tribunal 2 (ICT 2)heard matters in the following cases:

Chief Prosecutor vs. Qader Molla: Defense Closing Arguments cont’d

The key legal points made by the defense were:

• Bangladesh is not the appropriate venue for these trials because of the risk of bias resulting from the political and social pressures involved.
• The court must consider international customary law when determining the requisite elements of the crimes alleged to have been committed by the accused, and the prosecution must prove each element beyond a reasonable doubt.
• In order to prove “Crimes against Humanity,” the prosecution must prove that the accused committed crimes as part of a “widespread” or “systematic attack” directed against a civilian population by an armed force in an armed conflict..
• Hearsay evidence, while admissable, has limited or no probative value unless corroborated by other supportive evidence if it falls within the category of un-attributable hearsay.

Trial Venue and Political and Social Pressures Presents Potential for Bias in Proceedings
On behalf of the Defense Abdul Razzaq began by reiterating that the trial should not have taken place in Bangladeshi territory, so as to address any potential perception of bias.  Referring to the decision of the Supreme Court of the United States in Dennis v United States (341 US 494-592), Mr Razzaq emphasized that the essential character of a judicial court must  be detachment founded on independence. He stated that history shows the independence of the judiciary is likely to become jeopardized when courts become responsibe for choosing between competing political, economic and social pressures. He submitted that this trial is one that involves passion as well as political and social pressures which might jeopardize the fairness and acceptability of the proceedings. Razzaq noted that none of the trials of similar nature took place in the country where the alleged crimes occurred.  He additionally cited to a Pakistani legal case: PLD 1989 SC 166, in support of this argument.

The Elements of the Crimes Charged Must be Proved as Under International Customary Law
After making submissions on the political nature of the trial, Mr Razzaq focused his arguments on the elements of crime pertaining to the 6 different charges faced by Mr Abdur Quader Molla. The Defense submitted that the judges sitting in ICT 2 should look into customary international law as it existed in 1971 during the liberation war, and evaluate whether each of the elements of the crimes established under that law has been proven beyond a reasonable doubt by the prosecution.

The Defense highlighted the similarity between the definition of “Crime against Humanity” under section 3(2)(a) of International Crimes (Tribunals) Act 1973 and Principle VI(c) of Charter of Neuremberg and submitted that the charge of “murder” referred to in these definitions is to be differentiated from that defined in Section 302 of the Bangladeshi Penal Code 1860, and that additional elements must be proved for an alleged act of murder to be construed as “Crime against Humanity“. The court must therefore look into laws that have become part of the customary international law to determine the requisite elements of crime.

Element of “Widespread” or “Systematic Attack” Must be Present 
The Defense then referred to Article 5 of the Statute of the International Tribunal for the former Yugoslavia (commonly referred to as “ICTY Statute”) and its interpretation by the Appeal Chambers in cases such as Prosecutor v Duško Tadić] (1999), the counsel stressed that in order for the alleged acts of the accused to amount to Crimes against Humanity, they must comprise “part of a pattern” of “widespread” or “systematic” attacks directed against a “civilian population.”  The Defense provided an example, stating that If a murder takes place over a piece of land between a rajakar and a freedom fighter during the period of 1971, the murder will not constitute a “crime against humanity” since it was not done as part of such pattern.

The Defense then elaborated on the meaning of “widespread,” noting that the commentary to the I.L.C. Draft Code (94-94) explains that the acts must be committed on a large scale, meaning that the acts are directed against a multiplicity of victims and thus this requirement excludes an isolated inhumane act committed by perpetrator acting on his own initiative and directed against a single victim. The Defense did note that the Appeal Chamber of the ICTY in the Vukovar Hospital Decision recognized that a single act by a perpetrator can constitute a crime against humanity.

As for the meaning of “systematic,” the Defense stated that the commentary to the I.L.C. Draft Code (94-94) further explains that inhumane acts amounting to Crimes against Humanity must be committed in a systematic manner pursuant to a preconceived plan or policy. Thus it cannot be a random occurrence.

Razzaq argued that the prosecution did not provide any evidence to show that the alleged acts of the Accused were committed as part of a widespread or systematic attack or plan.The Defense argued that the prosecution bears the burden to prove beyond reasonable doubt that Quader Molla‘s alleged activities fit into such a pattern and that he had knowledge of the same. One of the Judges commented to the affirmative that there should be a link between the accused and the plan or policy, if one existed.

Freedom Fighters May Not Be “Civilians” under International Customary Law
The Defense additionally raised the question of whether the court should consider the freedom fighters to be “civilians” as opposed to members of the Bangladeshi “armed forces” during the liberation war. They noted the fact that freedom fighters were in fact trained by and acted under the command of what was already recognized or referred to as the Bangladesh Armed Forces.

The Defense noted that the judgement of the Appeal Chamber of ICTY in the case Prosecutor v Tihomir Blaskic states that Article 50 of Additional Protocol I read with Article 4A of the Third Geneva Convention establishes that members of the armed forces, and members of militias or volunteer corps forming part of such armed forces, cannot claim civilian status.

The Defense therefore claimed that the prosecution has not addressed the requisite elements of Crimes against Humanity in its case against Qader Molla.

Hearsay Evidence Supporting Charge 1 is of Limited Probative Value
Having addressed these overarching legal questions the Defense then started to address each of the charges against Mr Abdul Quader Molla alongside the related evidential question of law. Mr. Razzaq began by critically evaluating the testimony of the prosecution witnesses in support of Charge 1, under which Quader Molla has been indicted for the alleged murder of one Pallab. The alleged facts are that Qader Molla forcibly abducted Pallab and detained him by hanging him from a tree in Idgah until he was shot to death by one Akhter. The Defense emphasized that all the evidence presented before the court on this charge is hearsay. They further argued that although hearsay is admissible under the ICT Act, it should be categorized as an “un-attributable hearsay” that has limited or no probative value unless corroborated by other reliable and supportive evidence. The Defense cited the decisions in cases such as ICC Prosecutor v. Katanga and Ngudjolo, ICC 01/04-01/07-717, ICC; ICC Prosecutor v Lubanga, ICC-01/04-01/06-803-tEN and ICTR Prosecutor v. Kajelijeli, ICTR-98-44A-T in support of this argument.

The Defense highlighted that Prosecution Witness #2, Syed Shahidul Haque Mama, and Prosecution Witness #10, Syed Abdul Kaium, both testified against Mollah in relation to Charge-1 but stated only that they had heard allegations “from the people”. The Defense argued that this genus of hearsay evidence is un-attributable and does not carry any probative value. Hence, although it may be proved that Pallab was killed, the fact that it was done upon the order of Quader Mollah cannot be proved beyond reasonable doubt on the basis of such un-attributable hearsay evidence.

The Defense further noted that Mossammat Sahera, Defense Witness #4, stated that she had”never even heard” the name of Quader Molla. They argued that this further negates his involvement because, as the sister-in-law of the victim, she would be the most likely to want justice and therefore her testimony in favor of Qader Molla’s innocence should carry greater weight.

The bench noted that it is the duty of the court to determine the probative value of any evidence admitted and adduced before it. They also noted that Defense Witness #4’s testimony was repeated and that “this creates some suspicion in our mind.”

The Defense’s closing arguments are scheduled to continue tomorrow, January 9, 2013.