Category Archives: Daily Summaries

15 Jan 2013: ICT 2 Daily Summary – Qader Molla, Alim, Mujahid

The Tribunal heard matters in the following cases:

  1. Chief Prosecutor vs. Abdul Quader Molla – Defense closing arguments  (Accused Present)
  2. Chief Prosecutor vs. Abdul Alim– Examination of Prosecution Witness (Accused Present)
  3. Chief Prosecutor vs. Ali Ahsan Muhammad Mujahid – Examination of Prosecution Witness (Accused Present)

In the case of Qader Molla the Defense continued its closing arguments, attacking the prosecution’s evidence in support of charges 5 and 6. In particular they attacked the credibility of witnesses who had testified in support of the charges. The Tribunal urged them to complete their arguments and stated that they would only have one hour during tomorrow’s session to do so.

In the case against Mujahid, the Prosecution conducted its examination-in-chief of their 12th witness, who provided testimony in support of Charge 7, pertaining to the killing of the witness’ brothe,r Biren Shaha, along with 8 to 9 others from the Hindu community on 13 May 1971.

Finally, in the case against A.M.Alim, the Prosecution conducted its examination-in-chief of their 9th witness, Jahidul Islam, who testified in support of Charge 6, pertaining to the killing of Abdus Salam and nine others in early May 1971, as the victims were fleeing the conflict on their way to India.

To read in more detail please continue reading here: Continue reading →

15 Jan 2013: ICT 1 Daily Summary – Sayedee,Chowdhury, Gholam Azam, Nizami

Today the Tribunal heard matters in the following cases:

  1. Chief Prosecutor vs Gholam Azam (Accused Not Present)
  2. Chief Prosecutor vs Salauddin Qader Chowdhury  (Accused Present)
  3. Chief Prosecutor vs Delwar Hossain Sayedee (Accused Present)
  4. Chief Prosecutor vs Motiur Rahman Nizami  (Accused Not Present)

Today Tribunal 1 passed an order exonerating Sayedee’s Defense Counsel, Tajul Islam, Mizanul Islam and Tanvir Ahmed Al-Amin, from the contempt charge pending against them and withdrew the bar against Tajul Islam’s attendance in Tribunal 1.The Tribunal warned Tajul Islam to maintain the decorum of the Tribunal in future.

The Tribunal rejected an application filed by the Defense counsel on behalf of Gholam Azam on January 10, 2013, seeking to have the alleged skype documents and e-mails admitted as exhibits. The Order stated that in its January 3rd order rejecting the Defense applications for retrial the tribunal had already addressed the issue, stating that those documents are inadmissible as the product of illegal hacking.

On behalf of Chowdhury, Defense counsel Ahsanul Huq Hena continued his submission for removal of the conducting Prosecutor Zead-al-Malum. The Tribunal fixed January 20, 2013 for passing its order on the matter.

The Tribunal began hearing arguments in the Defense’s application for review of their order rejecting their request for retrial. Abdur Razzak completed his arguments on behalf of Gholam Azam, Delwar Hossain Sayedee, and Motiur Rahman Nizami.

For more detail continue reading here: Continue reading →

10 Jan 2013: ICT 1 Daily Summary

Today ICT 1 heard matters in the following cases:

  1. Contempt Proceedings – against Defense counsel Tajul Islam
  2. Chief Prosecutor vs Salauddin Quader Chowdhury – Prosecution Case-in-Chief
  3. Chief Prosecutor vs Motiur Rahman Nizami – Defense Case-in-Chief
  4. Chief Prosecutor vs Delwar Hossain Sayedee – Contempt Proceedings brought by Defense against ATN News and BTV
  5. Chief Prosecutor vs Golam Azam – Defense Case-in-Chief

None of the Accused were present in the courtroom today.

Contempt Proceedings
On October 22, 2012 the court began contempt proceedings against Defense Counsel Tajul Islam and  barred him from entering into ICT 1. The Tribunal had also served show-cause notices against Defense counsel Tanvir Ahmed Al-Amin and Mizanul Islam on November 6. On November 23, 2012 the former law minister and BNP leader, Moudud Ahmed, offered an unqualified apology on behalf of Tajul Islam and the other defense counsel and begged forgiveness of the court. On November 23, 2012 the Tribunal scheduled January 10 for passing its order on the matter and lifted the bar against Tajul Islam appearing in Tribunal 1, but still barred him from presenting submissions before the Tribunal. Today (January 10, 2013) Tribunal-1 rescheduled January 15, 2013 for passing the order.

Chief Prosecutor vs. Salauddin Qader Chowdhury
Today, Ahsanul Huq Hena, Defense counsel for Salauddin Qader Chowdhury sought adjournment and Tribunal allowed the prayer and adjourned the case till January 14, 2013.

Chief Prosecutor vs. Motiur Rahman Nizami
Mizanul Islam, Defense Counsel of Nizami sought adjournment for today (January 10, 2013) as Nizami was absent from the Tibunal. Mizanul Islam said before the Tribunal that yesterday (January 9, 2013) was fixed for Motiur Rahman Nizami’s case. Prosecutor Iqbal Hossain submitted that there was a common understanding that the case would continue even if Nizami was absent. The Tribunal adjourned the case until January 20, 2013.

Chief Prosecutor vs. Delwar Hossain Sayedee
Today was fixed for hearing proceedings filed by Defense Counsel of Delwar Hossain Sayedee against ATN News and BTV. Tanvir Ahmed Al-Amin submitted before the Tribunal that when Tribunal fixed the date for the resubmission of closing arguments ATN News broadcast interviews of the prosecution witnesses. The Defense alleged that in this programme Sayedee was described by the host as a criminal and war criminal, despite the fact that  Saydee has pled not guilty and has not been convicted of any crime up to this point.  Relying on section 11(4) of the ICT Act 1973, the Defense sought an order against the media agencies. The Defense argued that these programs prejudiced the Defense case.

Justice Jahangir Hossain interjected that the Tribunal will give judgment on the basis of the merits of the case alone and will not rely on any TV interview or program. The Defense further submitted that BTV also broadcast a similar program. In support of this application Defence submitted a CD and requested that the Tribunal watch the footage of the shows. The tribunal fixed January 14, 2013 for issuing an order.

Chief Prosecutor vs. Professor Golam Azam
Defense Counsel for Golam Azam also filed an application seeking the disqualification of Chief Prosecutor Zead-al-Malum. The Defense requested that the Tribunal hear this application along with a similar application being made in Salauddin Quader Chowdhury’s case. The Defense counsel for Chowdhury filed an application on December 19, 2012 for the removal of the Prosecutor Zead-al-Malum. These applications are based on references to Zead-al-Malum made in the Skype conversations between former Chairman Nizamul Hoque and foreign legal expert Ahmed Ziauddin. The Defense claims that these conversations show collusion between the Prosecution and the judges. The Tribunal fixed January 14, for the hearing of these applications.

Outside the Courtroom
Today, Chairman ATM Fazle Kabir returned from leave and was present at the Tribunal. At one point the Tribunal was informed that Sayedee was experiencing chest pains (He was present in the building but not in the courtroom). Defense Counsel sought the Tribunal’s permission for Sayedee to leave the Tribunal premises and return to custody. Tribunal granted the request.

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.

8 Jan 2013: ICT 2 Daily Summary – Qader Molla Closing Arguments

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.