9 Jan 2013: ICT 2 – Qader Molla Defense Closing Arguments

The Tribunal continued hearing the Defense’s closing arguments in the case of Chief Prosecutor vs. Abdur Qader Molla

Arguments were made regarding the following legal points:

  •  Inadequacy of evidence due to delay or other reason will not lessen the burden of the prosecution to prove charges beyond reasonable doubt.
  • The offences under International Crimes (Tribunals) Act 1973 are categorized into four modes of liability, the charges must be proven beyond a reasonable doubt for the asserted mode.
  • To Prove Aiding and Abetting Prosecution must show knowledge and direct and substantial assistance or involvement.
  • Abduction was not understood as a Crime against Humanity according to Customary International Law at the time of the alleged crimes and therefore the accused cannot be charged with that crime under the ICT Act.
  • There are inconsistencies and discrepancies in te prosecution witness testimony presented and the majority of that testimony should be categorized as un-attributable hearsay statements that lack probative value.

The Defense began its submission by stating that it would address the legal issues involved with each of the charges against Quader Mollah.

Defense counsel Abdur Razzaq discussed the standard of proof by which the prosecution must prove the guilt of Quader Molla, stating that “beyond reasonable doubt” requires that the court be satisfied that liability of the accused is the only reasonable conclusion available. He cited the ICTY Appeal Chamber decision in Prosecutor v. Dragomir Milosevic.

Inadequacies of Evidence Due to Lapse of Time Will Not Lessen the Burden of Proof
The Defense discussed the four modes of liability provided for under the International Crimes (Tribunals) Act 1973, liability 1) as the principal under sections 3(2)(a) through (f);  2) as an accomplice or conspirator under sections 3(2)(g) for attempt, abetment or conspiracy and (h) for complicity or failure to prevent the commission of such crimes; 3) vicarious liability under section 4(1) as one of the several persons who committed a crime under section 3 and 4) for command responsibility under section 4(2) as a commander or superior officer who orders or permits in the commission of those crimes. The Defense stressed that the case of the accused must fit into one of these four modes of liability and that any minute doubt in this regard must be construed in favor of the accused, as articulated by the ICTY Trial Chamber in the Tadic judgment (Prosecutor v Tadic, Case No.:IT-94-A-T; paragraph 240).

The Defense further noted that on occasions, it may be difficult for the prosecution to bring adequate evidence in support of the defendant’s guilt because of the elapse of time since the crime or other reasons. They argued that in the instant case for example, prosecuting the accused and others in the International Crimes Tribunal after 40 years since the liberation war commission is difficult and troublesome for the prosecution, given the fact that many witnesses have expired and others unable to recall and cannot be found. They stated that as established in the appeal judgment of ICTY in the case, Prosecution v ZORAK KUPRE[KI], MIRJAN KUPRE[KI], VLATKI KUPRE[KI], VLADIMIR SANTIC, IT-95-16-A, such difficulty will not be a valid reason for the prosecution to lower the required standard of proof.

Charge 1: To Prove Aiding and Abetting Prosecution must show Knowledge and Direct and Substantial Assistance
The Defense further argued that for Charge 1 against Quader Molla, which alleges the  second mode of libaility – aiding and abetting, the prosecution failed to prove that Molla’s alleged acts had a substantial effect on the commission of the crime. This standard, as established by the Appeal Chambers of the International Criminal Tribunal for Rwanda (ICTR) in Sylvestre Gacumbitsi v The Prosecutor, ICTR-2001-64-A; paragraph 140, shows that mere presence at the scene of the crime is not sufficient to prove aiding and abetting. Furthermore, the I.L.C Draft Code concludes that the accused must knowingly aid, abet or otherwise assist, directly and substantially, in the commission of such a crime. The Defense argued that the Prosecution merely drew a pictorial or panoramic presentation of the series of incidents that took place leading up to the death of Palab failed to affirmatively establish each of all these elements beyond the standard of reasonable doubt.

Upon being asked by the court to make submissions regarding the definition and elements of abduction, the Defense stated that abduction was not recognized under customary international law in 1971 as a crime against humanity and so the accused should not be tried for abduction. It was first recognized only in the year 1992 and even then not precisely as abduction, but in terms of “forced disappearance of persons”, as defined in Article 7(2)(i) of the Rome Statute of the International Criminal Court.

Charge #2: Prosecution has Relied on Un-Attributable Hearsay and Has not Established the Element of Widespread and Systematic Attack
The Defense then turned to Charge 2 against Quader Molla, which pertains to the murder of poet Meherun Nesa, her mother, and two brothers on 27 March 1971 and which  is framed under Section 3(2)(a) for Crimes against Humanity and Section 3(2)(h) for complicity in or failure to prevent the commission of such crimes.  The Defense submitted that the testimony provided by prosecution witness #2,  Mr Syed Shahidul Hoque Mama, and prosecution witness #4. Qazi Rozi, referring to the involvement of the accused in this crime was un-attributable hearsay evidence. Prosecution Witness #10, Mr Abdul Qaiyum, made no reference regarding Quader Molla in terms of charge 2. Therefore the Defense argued the Prosecution had failed to meet its burden of proof on this charge.

The Defense further argued that Charge 2  refers to Quader Molla as one of the leaders of Islami Chatra Sangha and as well as a prominent figure of Al-Badar. They questioned whether Islami Chatra Shangho and Al-Badar may be considered to be auxiliary forces of the Pakistani Army, so as to bring their activity within the ambit of the implementation of “plan and policy” of the Pakistani forces, qualifying it as a systematic attack (The requirement of “systematic attack” was considered and defined during the counsel’s submission on 08.01.2013).

Charge 3: Based on Un-Attributable Hearsay
The Defense then turned to Charge 3, under which Qader Molla is charged with murder as a crime against humanity and complicity in such crimes for his alleged involvement in the murderof Khondoker Abu Taleb on 29 March 1971. The Defense again argued that the Prosecution’s case  is based on un-attributable hearsay and should not be given any probative weight.

Charge 4: No One Saw Qader Molla Directly or Substantially Participating in the Alleged Crimes
The Defense then argued that the Prosecution had not proven its case for Charge 4, pertaining to the killing of two unarmed freedom fighters – Osman Goni and Golam Mostafa – and an attack on the two villages of Bhawal Khan Bari and Ghotar Chaar on 25 November 1971, resulting in the killing of hundreds of civilians and burning homes. Under Charge 4 Qader Molla is charged with murder as a crime against humanity, aiding and abetting murder as a crime against humanity, and complicity in the commission of such crimes.

The Defense argued that the prosecution witness statements presented did not prove the allegations against the accused. Prosecution witness #1, Mojaffor Ahmed Khan testified that Abdul Majid informed him about a meeting held at Gatachor in the presence of Quader Molla, amongst others, whereby the decision to commit genocide of unarmed people was reached. Here, the witness did not see the presence of Molla but heard it from a third person. The Defense argued that such hearsay statements cannot be given probative weight. Even if the statements are considered to be true, all the other elements of the crime remain unproven. Prosecution Witness #1 in his cross examination stated that he did not see Qader Molla directly committing any crime. He simply saw him standing in front of Physical Training Institute with a Chinese Rifle.

The Defense further stated that prosecution witness #8, Nurjahan, who was only 12 years old during the liberation war, testified only that she heard from her father-in-law that her husband was killed by Qader Mollah. No reference as to the source from which her father-in-law came to know of this or whether he witnessed it himself was made by Nurjahan.

The Defense reiterated that mere presence is not enough to establish the crime of aiding or abetting, complicity or principal involvement. Furthermore they argued that un-attributed hearsay evidence should not be given probative weight and that thus the prosecution had not met its burden of proof for charge 4.

Charge 5: Defense Argued that The Prosecution’s Production of Only One Eye Witness to Such a Large Attack is Suspicious
The Defense then addressed Charge 5, under which Qader Molla is charged with murder as a crime against humanity, aiding and abetting murder as a crime against humanity, and complicity in such crimes for his alleged participation in a raid on the village of Alubdi (Pollobi, Mirpur) and the killing of 344 civilians on 24 April 1971. The Defense argued that given so many people were killed and such a high number of families were affected by the incident, there should have been numerous eye witnesses witnessing the incident of the mass killing. Instead, only one eye witness, Mr Shafiuddin Molla (PW6), testified for the prosecution as to Qader Molla’s involvement

The judges made a comment that the victims of this incident were not from that locality and hence their families could not have witnessed their killing.

Charge 6: Similarly, the Witness Testimony is Hearsay and Uncorroborated, therefore it is not Probative
Finally the Defense addressed Charge 6, under which Qader Molla is charged with murder as a crime against humanity, rape as a crime against humanity, aiding and abetting crimes against humanity and complicity in such crimes for his alleged involvement in the  murder of Hajrat Ali, Amina, their minor daughters Khatija and Tahmina and infant Babu and for the gang rape of a minor Amela on 26 March 1971. Momena Begum, prosecution witness 3, in support of these charges by referring to a tea boy, Kamal Khan, and her father-in-law Akkas Molla, who had told her that Quader Molla was the killer. The Defense again dismissed this testimony as insufficient to prove the charges because it was hearsay and uncorroborated.

Concluding for Today
The Defense concluded the days arguments by emphasized the fact that the majority of testimony provided by the prosecution witnesses in support of these charges falls within un-attributable hearsay, in addition to showing discrepancies and contradictions.  Apart from Mr Shafiuddin Molla (Prosecution Witness 6), none of of the witnesses testified claiming that they saw Quader Molla killing or participating in any of the alleged crimes. All others heard about the involvement of Quader Molla. The Defense argued that in the absence of corroborative evidence this type of testimony fails to prove guilt of the accused beyond a reasonable doubt.