Tag Archives: Closing Arguments

16 Jan 2013: ICT 1 Daily Summary – Sayedee and Golam Azam

NOTE TO THE READER: Today opposition parties called a hartal (strike) for half the day. AIJI’s researcher was unable to attend the proceedings because of the strike. (transport to and from court becomes quite dangerous during such strikes) These notes regarding the proceedings for today were compiled through other persons present at the tribunal including the Defense team and journalist coverage. The prosecution team was also asked to verify their accuracy but did not respond before publication The WCSC has done its best to insure the neutrality of the notes from today but cannot guarantee their accuracy. Please bring any discrepancies to our attention.

The Tribunal heard matters in the following cases:

  1. Chief Prosecutor vs. Delwar Hossain Sayedee – Prosecution Closing Arguments
  2. Chief Prosecutor vs. Sayedee, Golam Azam, and Nizami – Hearing of Application for Review of Order Denying Retrial

Due to the half day hartal a junior member for the Defense requested adjournment until 2pm. The Tribunal granted his request and convened for the afternoon session.

Chief Prosecutor vs. Sayedee, Golam Azam, and Nizami
Yesterday, January 15, 2013 the hearing of the Review application began in the cases of Sayedee, Golam Azam and Nizami. Defense counsel Abdur Razzaq completed his arguments on behalf of the Accused.

Today Haider Ali gave a reply on behalf of the prosecution. He raised an objection regarding the Defense referring to the Order rejecting the retrial application as a ‘impugned order’ in their petition. He submitted that the Defense’s challenge of the usage of  the term ‘alleged’ in reference to the skype conversations between the former chairman and Ziauddin was also objectionable. He submitted that as the Defense introduced the skype and e-mail communications, the burden was on them to prove their contents. He argued that the existence of the conversations is established but not their content. Continue reading →

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 →

13 Jan 2013: ICT 1Daily Summary – Golam Azam, Nizami, Sayedee

Today ICT 1 heard matters in the following cases:

  1. Chief Prosecutor vs Golam Azam– Application for Review (Accused Not Present)
  2. Chief Prosecutor vs. Motiur Rahman Nizami – Application for Review (Accused Not Present)
  3. Chief Prosecutor vs Delwar Hossain Sayedee – Application for Review, Contempt Proceedings, Prosecution Closing Arguments (Accused Present)

Defense counsel for  of Golam Azam, Nizami and Sayedee filed applications for Review of the January 3, 2013 order denying retrial. Senior Defense lawyer Razzaq requested that the tribunal halt proceedings until the Review applications have been addressed by the court. Prosecutor Haider Ali argued that the tribunal should reject the applications summarily.

The Chairman of Tribunal-1 stated that the trials would continue as the court considered the Review applications. Razzaq then argued that in the interest of justice the Tribunal should hear the Review application before hearing the summing up of arguments in Sayedee’s case. This request was rejected and the Prosecution began their closing arguments as scheduled for that case.

Continue reading →

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

Today, ICT 2 heard matters in the following cases:

  1. Chief Prosecutor vs. Abdul Quader Molla – Defense Closing Arguments (Accused was Present)

The Defense focused their submissions on the following legal points:

  • The case was brought to the ICT without filing the appropriate legal complaint
  • The transfer of the case from a domestic court to the ICT was improper and did not follow appropriate procedure.
  • The Investigating Officer improperly submitted the Investigation Report before completion of investigation and did not follow procedure in maintaining the Case Diary.
  • The evidence provided by prosecution witnesses 4 and 7 is flawed and contradictory

On behalf of Qader Molla, Defense counsel Tarafdar continued the closing arguments by attacking the instigation of the case and then by analysing the prosecution’s evidence and witness testimony.

The Case Was Not Properly Instigated
The Defense claimed that the case against Qader Molla was improperly instigated because an initial complaint containing the allegations against the Accused was not filed before the ICT. Tarafdar pointed out that the case began after cases pending  against Qader Molla in Pallabi and Keranigonj, based on complaints filed in the respective area’s police stations, were sent from the Dhaka Metropolitan Magistrates’ Court to the Registrar’s office at the ICT. The Defense questioned whether 1) it was appropriate for the records of cases pending before a court to be transferred to the tribunal in this manner and 2)whether the tribunal may proceed with cases that are ongoing under the Penal Code.

The Defense argued that a case must be instituted by filing a complaint against the accused or suspect.  Although the International Crimes (Tribunals) Act 1973 contains no such provision, the Defense argued that the International Crimes (Tribunal-2) Rules of Procedure 2012 implies a similar requirement.  Rule 2(6) defines “complaint” as any information, oral or in writing obtained by the Investigation Agency including its own knowledge relating to the commission of a crime under section 3(2) of the 1973 Act. The Defense claimed that no such information was ever obtained.

The Defense argued that the two cases that were transferred from the Metropolitan Magistrates Court to the ICT (Case No.34 of Keraniganj police station, dated 31 December 2007;  and Case No. 60 of Pollobi police station, dated 25 January 2008)  were based on the Penal Code and so are outside the jurisdiction of the tribunal. The Defense further argued that the 1973 Act and the 2010 Rules of Procedure contain no provision allowing for the transfer of such cases to the ICT. The Defense argued that such transfer is not allowed and that due to these and other procedural improprieties, the investigation and initiation of the case against Qader Molla in the ICT should be nullified.

Irregularities in the Investigation Process
The Defense further alleged that there had been irregularities in the investigation process. They noted that the Investigation Report was submitted by the Investigation Officer (IO) before the completion of the investigation and that the Case Diary in which the investigation progress is recorded was not properly kept afterwards. The Defense noted that the IO, who later gave testimony as prosecution witness 12, only referred to 3 of the 6 charges ultimately brought against Qader Molla during in his examination-in-chief. Therefore the Defense claimed the investigation was flawed and the charges ultimately framed against Qader Molla were similarly flawed.

The Defense stated that the Investigation Officer (IO) began his investigation on 22 July 2010. As per Rule 8(1), the IO is required to maintain a Case Diary until the completion of the investigation and as per Rule 11, he must submit an Investigation Report after the completion of the investigation.The Defense highlighted that the IO admitted during his testimony that he continued his investigation after submitting the investigation report, contrary to Rule 11. The Defense argued that the IO does not have lawful authority to continue investigation in this manner. Furthermore, they argued that Section 8(4) of the 1973 Act provides for only one IO as the wording “any investigation officer” has been used.  The Defense stated that the prosecution team also investigated, and that this duplicated the job of the IO in a way not provided for in the Act. The investigation was thus flawed on the basis of which charges have been brought which were also flawed.

The judges requested the Defense to address the underlying evidential defects in regards to each of the charges, asking Tarafdar to deal with each charge chronologically and separately. The Defense chose to begin with Charge 4 even though the Judges suggested he begin with Charge 1.

Witness Testimony in favor of Charge 4 is Not Credible:
The Defense began criticizing the prosecution’s evidence for charge 4 by attacking the witnesses who testified in support of the charge (PWs 1,7 and 8).

The Defense noted that Prosecution Witness 1, Mr Mozaffar Ali Khan, testified in support of charge 4, alleging that he saw Qader Molla in front of Mirpur Physical Training Centre and that he was armed and accompanied by along with his associates. He neither saw the incident alleged in the charge, nor Quader Molla’s participation in it. The Defense further noted that the withness had previously testified before the Chief Judicial Magistrate pertaining to a case filed in 2007 [CR Case No. 17/2007 in CMM Court, subsequently transformed to GR Case No. 34(12)2007 in Keranigonj Police Station], but did not make any statement implicating Qader Molla.

The Defense additionally noted that Mozaffar Ali Khan had been acquainted with the accused since 1969 due to political rivalry. Yet Mr. Khan did not complain about the accused after the liberation war, which gives rise to further doubt in regards the involvement of the accused.

The Defense then focused on prosecution witness 7, Mr Abdul Majid Paluan. The counsel alleged that the IO recorded this witnesses statement falsified the date when the statement was actually recorded by backdating it. The Defense alleged that prosecution witnesses 7 and 8 were actually only produced later, when the IO found that prosecution witness 1 could not give enough evidence against the accused in support of the charge.

The judges commented that there had been some inconsistencies in the testimony of witness 7, in that he first alleged that he saw the accused participate in the shooting whereas he later said that he heard from others that the accused had been involved.

The tribunal then adjourned for the day. They noted that they had allocated the entire day for the defense counsel’s arguments and asked him to sum up before lunch break tomorrow.

Courtroom Dynamics
The Defense counsel was at times slow and repetitive in his submissions. The judges noted their dissatisfaction with the pace of the arguments and asked the defense to be more expeditious. At some points, a strain between the judges and the counsel was apparent.

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.