Tag Archives: Closing Arguments

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.

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

Today Tribunal 2 Heard the beginning of Defense Closing Arguments in the case of Chief Prosecutor v. Qader Molla:

Application for Review of Sanction Order
The court first heard an Application from the Defense requesting review its January 3, 2013 order imposing a sanction of BDT 10,000 on the Accused for submitting repetitive applications as a delay tactic.

The Defense submitted that its application for review of the order denying the permission to produce additional witness was submitted upon the decision of the lawyer without the express instruction of the Accused, and that therefore the lawyer should be held responsible instead of the client.

The court adjusted its order stating that the counsel of the accused moving the review application should pay the fine out of his own pocket, although the amount is reduced to BDT 5,000. The court stated the fine was for the failure of the counsel to take specific instructions from the client in regards to the course of action and for failing to act accordingly.

Application for Retrial by a New and Reformed Bench
The Defense then addressed its application for retrial in the Case of Qader Molla. It argued that  it had made similar submissions in other cases based on the perception of bias and improper influence by the former chairman who was part of alleged skype conversations with an outside legal expert based in Brussels (Dr. Ziauddin) who also worked closely with the Prosecution.  The Defense argued that the application should be pressed in the instant case so that it to appears on records. The Defense stated that If the application is to be rejected, the court should announce its reasons in respect of arguments made in this particular application.

The Tribunal responded that its order would not be any different from its orders on other retrial applications unless the Defense introduced new or exceptional arguments to convince the court to the contrary.

Defense Closing Arguments for the case against Qader Molla
The Defense then moved to closing arguments. Senior Defense Counsel Abdur Razzaque made the following legal arguments:

  • The International Crimes (Tribunals) Act 1973 was enacted for the purpose of prosecuting the 195 Pakistani Prisoners of War held after independence and is not appropriate for use against citizens of Bangladesh
  • The Bangladesh Collaborators (Special Tribunal) Order of 1972 was designed for the prosecution of the rajakars and other collaborators acting as auxiliary forces for the Pakistani Army.
  • The executive decision not to prosecute the 195 POWs was given in respect for the Tripartite agreement between Bangladesh, India and Pakistan in 1974, and is similar to a judicial discharge of the cases.
  • Where the principal offenders of a crime are not prosecuted, the judiciary cannot prosecute alleged aiders and abettors.
  • There has been a 40 year delay in lodging formal charges against the accused without any reasonable satisfactory explanation.
  • The true purpose of the trial is malafide due to political and executive interference and a perception of bias.

The ICT Act of 1973 is not the Appropriate Law under which to Prosecute Collaborators
The Defense argued that the International Crimes (Tribunals) Act of 1973 was enacted with the purpose of prosecuting the then 195 Pakistani Army Prisoners Of War. The law was not envisioned as the basis for prosecuting citizens of Bangladesh. Defense counsel cited the Parliamentary debate on the First Amendment to the Constitution on 3 July 1973, followed by the Parliamentary Debate on the International Crimes (Tribunals) Bill of 1973, on 20 May 1973 as proof that the legislative intent of the ICT Act did not encompass the prosecution of citizens or collaborators.

The Defense asserted that the Bangladesh Collaborators (Special Tribunal) Order of 1972 was the law designated for the prosecution of the rajakars and other collaborators. This law applied only to rajakars over whom the commander of the Pakistan armed forces had full control, similar in degree to that exercised over members of the army. Rajakars who acted under the control of the Pakistani Army would thus be considered auxillary forces.The Defense cited the preamble of the act claiming that it showed it was meant to be used to try those who aided or abetted the Pakistan Armed Forces by contributing to crimes against humanity and genocide.

The judges responded that the Schedule of this President’s Order refers to offences under the Bangladeshi Penal Code and makes no reference to genocide and crime against humanity. Accordingly, it could not act as the complete law to try the Rajakars.

The Defense then argued that the government of Bangladesh issued an executive decision not to prosecute the 195 POWs as part of the Tripartite Agreement between Bangladesh, Pakistan and India. The Defense claimed that the decision not to prosecution is similar to a judicial discharge of the case.

The judges weighed in, stating that the decision not to prosecute was an executive decision, not a discharge in the judicial sense.They stated that the executive decision remains open to challenge.

Where Principal Offenders are not Prosecuted, Abettors Should Not Be Either
The Defense continued its argument, stating that because the governement had made the decision not to try the principal offenders (the POWs), by law, the abettors usually cannot be tried by themselves. They cited to the cases 16 DLR 147, 54 DLR 298, PLD 1961 Lah 212.(WCSC is obtaining the names of these cases and will update).

The judges responded that the facts of these cases distinguish them from the instant case.

40 Year Delay in Prosecution Gives Rise to Perception of Bias and Abuse of Process
The Defense then argued that no explanation has been given as to why there has been a 40 year delay in prosecuting these alleged collaborators. Such absence of explanation gives rise to the question of whether these trials are an abuse of process. Such doubts may be fatal to the prosecution. The Defense cited 44 DLR 492 in support of this argument. (WCSC is obtaining the name of this case and will update).

Furthermore, the Defense argued that the conclusion that the proceedings are being persued with malafide intention and for political purposes may be deduced from the surrounding circumstances and executive interference. Razzaq cited to AIR 1967 SC 483. (WCSC is obtaining the name of this case and will update)

Finally, the Defense argued that the trial should not have taken place in Bangladeshi territory, because of the potential perception of bias and the likely prejudice to the judicial process. Razzaq referred to the Lockerbie Air Disaster case, involving an U.S. plane crash on Scottish territory for which the trial took place in Netherlands.

The Defense will continue its submissions tomorrow.

Dynamics Outside of Court
At the beginning of the court session the Defense Counsel notified the Court of the fact that unlike prosecution lawyers, lawyers representing the defense were not allowed to enter the court premises with their cars, which they claimed to be discriminatory. The Judges aligned themselves against such differing treatment giving assurance that the matter will be looked into immediately upon a brief conference addressing security issues.