Tag Archives: Tribunal 2

Abul Kalam Azad Guilty Verdict

Today Tribunal 2 issued the first verdict of the Bangladesh International Crimes Tribunal. The verdict was issued against Abul Kalam Azad, also known by his alias “Bacchu”, who has been tried in absentia.

The Tribunal found Kalam Azad GUILTY on 7 of 8 Charges. He was found NOT GUILTY of Charge 2. Six of the guilty verdicts were for crimes against humanity and one was for genocide. Referencing the gravity of the crimes of genocide and murder as a crime against humanity, the court sentenced Kalam Azad to death by hanging for Charges 3,4,6 and 7. For Charges 1,5,8 the Tribunal stated that Kalam Azad was deserving of imprisonment. However, because of the death sentence issued the Tribunal did not stipulate any further terms of imprisonment.

The pdf can be obtained by clicking here: Kalam Azad Judgment (Summary) 21.01.13

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21 Jan 2013: First Verdict Expected for Abul Kalam Azad “Bachu”

The Registrar of the International Crimes Tribunal, Mr AKM Nasiruddin Mahmud officially announced yesterday after ICT-2’s brief morning session that the Tribunal-2 has fixed Monday, 21.01.2013 to pronounce the verdict in the case of Abul Kalam Azad aka Bacchu Rajakar. This shall mark the maiden judgment in cases involving the trial of accused for their alleged crimes against humanity during the period of Bangladesh’s War of Liberation in 1971.

The Tribunal issued an arrest warrant against Abul Kalam Azad on 3 April 2012. On 2 September 2012, the Prosecution submitted formal charges against this former leader of Islami Chhatra Sangha, the then student wing of Jamaat-e-Islami, accusing him of 10 counts of Crimes against Humanity. Unlike the other senior members of his party now facing trial, Azad’s trial has been carried out in absentia. Azad absconded when allegations of war crimes were leveled against him. Accordingly, on 7 October 2012 the tribunal appointed Abdus Sukur Khan, an advocate of the Supreme Court to act as the state appointed defense counsel.

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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.

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.

3 January 2013: Tribunal 2 Daily Summary

Tribunal 2 heard matters in the following cases:

  1. Chief Prosecutor vs. Qader Molla -Defense petition for review of order dying permission to produce additional witnesses
  2. Chief Prosecutor vs. Ali Ahsan Mohammed Mujahid – Cross examination of Prosecution Witness #11 [See here for more detail]
  3. Chief Prosecutor vs. Muhammad Kamaruzzaman – application for retrial hearing [see here for more detail]
  • The Counsel for Defense made request for a later hearing date of the review application filed a for reconsideration of the tribunal’s decision denying the permission to produce additional defense witnesses. The request was immediately denied orally, along with the request for two hours of time for enabling the Senior Defense Counsel to appear. The Tribunal required the Counsel for Defense to make submissions instantaneously. The Tribunal rejected the review application reasoning that the ICT rules of procedure contain no provision allowing the defense to call additional witnesses and noting that only the prosecution may do so. The Tribunal further stated that the application was virtually identical to one rejected earlier, and that it must have been submitted in order to cause delay in the proceedings. The rejection was accompanied by a sanction of 10,000 BDT imposed on the Defense for submitting repetitive applications.
  • The court then moved to Mujahid’s case wherein the prosecution witness PW-11, Mr Foyez Uddin Ahmad, was cross examined by the defense counsel. The core line of questioning was aimed at attacking the reliability and credibility of the witness’s testimony, suggesting that the testimony is fabricated and based on the coaching of the Prosecution, and that the witness neither knew the accused, nor was he capable of recognizing him.
  • Finally, the Court heard at length the application filed on behalf of Muhammad Kamaruzzam for the recall of the order by which the Tribunal took cognizance of the charges against him and for a full and complete retrial. The Defense argued that the perception of bias created by the leaked Skype and email conversations between the former ICT 1 Chairman and outside legal expert Dr. Ziauddin prejudiced the Accused’s right to fair trial and therefore necessitate a retrial. They supported these arguments with international legal precedents.  The court denied the application, firmly rejecting any such possibility of bias and condemning the content of Skype conversation. They stated that the statements in the Skype conversations were at all true, they reflected only on the former Chairman and Dr. Ziauddin. The Tribunal then passed  a suo moto order requiring Mr Ziaduddin, the Brussels based Bangladeshi international law expert, to explain, within 30 days from the receipt of this order, why contempt proceedings shall not be commence for his Skype conversations with the retired chairman of ICT-1 and the appearance that he was attempting to interfere with the independence of the tribunal. Prosecution witness PW-16 who was present expressed his inability to give testimony on that day due to his sudden illness.