Out of order posting. (This is linked to the post relating to the beginning of the trial of Molla)
Below is the written application for review of the indictment order made by the defense team. The first witness in the trial of Molla.
1. It is recalled that on 28 December 2011 this Tribunal took cognizance of offences under section 3 (2) of the International Crimes (Tribunal) Act 1973 as amended 2009 (hereinafter: IC(T)A) against the Accused-Petitioner, stating that the Prosecution had established a prigma facie case as required under Rule 29 (1) of Rules of Procedure.
2. Subsequently the Tribunal ordered the Prosecution to serve the relevant papers and documents under Rule 19 (1) of the Rules of Procedure in its case against the Accused-Petitioner by 1 January 2012 which was complied with by the Prosecution. On 17.01.2012 the Prosecution sought to include a further additional charge under section 3 (2) (a) IC(T)A in relation to the alleged crimes committed against the family of Hazrat Ali.
3. In response, the Defence filed its Application for Discharge on 1st April 2012. On 16 April 2012, the case was transferred to Tribunal-2 on application by the Prosecution dated 15.04.2012. This was followed by submissions made by both parties during the formal charge hearings held on 2 May, 7 to 9 May, 13 to 14 May and 16 May 2012.
4. On 28 May 2012, the Tribunal passed an order framing a total of 6 charges against the Accused-Petitioner (hereinafter: 28 May 2012 Order). A certified copy of the 28 May 2012 Order was issued on the same day.
5. It is recalled that pursuant to Rule 26 (3) of Tribunal-2 Rules of Procedure a review of any of the Tribunal’s orders either by the Tribunal’s own motion or on application of either party including the order of framing charges is allowed. Pursuant to Rule 26 (5) Tribunal-2 Rules of Procedure an application for review must be filed within 7 days of the order under review.
6. For the following reasons, it is submitted that the Tribunal erred in its approach in framing the charges against the Accused-Petitioner in its 28 May 2012 Order. For this reason, the Accused-Petitioner prays for a review of the 28 May 2012 Order under Rule 26 (3). This application is made within the specified time-limit.
7. It is recalled that in its 28 May 2012 Order, the Tribunal states that there is “no actual consistency in the definition of ‘crimes against humanity’ as per the ICTY Statute, the ICTR statute, the Rome Statute and the Sierra Leone Statute” (28 May 2012 Order p. 12).
8. In coming to this conclusion, the Tribunal relies on two submissions: firstly, that: “the definition of ‘crimes against humanity’ as contemplated in Article 5 of the ICTY Statute 1993 neither requires the presence of ‘widespread or systematic’ nor the presence of ‘knowledge’ thereto as conditions for establishing the liability ‘crimes against humanity. True, the Rome Statute definition differs from that of both ICTY and ICTR Statutes”. (28 May 2012 Order, p. 12).
9. Secondly, the Tribunal states, “in establishing the ‘crimes against humanity’ in the Sierra Leone Court, there is no need to prove that the relevant crimes were committed with the knowledge of attack” (28 May 2012 Order, p. 12). It is noted that there is no citation for this submission.
10. It is respectfully submitted that the Tribunal has incorrectly stated the position of both the ICTY and the Special Court for Sierra Leone (SCSL). The jurisprudence of the ICTY clear reflects that the contextual elements of ‘widespread or systematic’ attack have existed since the inception of the court. This is reflected by the Appeals Chamber in Prosecutor v. Dusko Tadic: “The Appeals Chamber agrees with the Prosecution that there is nothing in Article 5 to suggest that it contains a requirement that crimes against humanity cannot be committed for purely personal motives. The Appeals Chamber agrees that it may be inferred from the words “directed against any civilian population” in Article 5 of the Statute that the acts of the accused must comprise part of a pattern of widespread or systematic crimes directed against a civilian population and that the accused must have known that his acts fit into such a pattern. There is nothing in the Statute, however, which mandates the imposition of a further condition that the acts in question must not be committed for purely personal reasons, except to the extent that this condition is a consequence or a re-statement of the other two conditions mentioned (emphasis added)” (IT-94-1-A, Appeals Chamber Judgment, 15 July 1999, para. 248).
11. As regards the SCSL, it is submitted that in the first trial judgment of the court, it was held in Prosecutor v. Brima, Kamara and Kanu: “The perpetrator must have knowledge that his acts constitute part of a widespread or systematic attack directed against a population. The mens rea or mental requisite for crimes against humanity is that the perpetrator of the offence must be aware that a widespread or systematic attack on the civilian population is taking place and that his action is part of this attack (emphasis added).” (SCSL-04-16-T, Trial Judgment, 20 June 2007, para. 221, footnotes omitted).
12. This requirement is consistent with the jurisprudence and Statutes of the ICTY, ICTR and ICC (See Prosecutor v. Tadic, IT-94-1-A, Appeals Judgment, 15 July 1999, para. 271; Prosecutor v. Semanza ICTR-97-20-T, Judgment, 15 May 2003, para. 332; Prosecutor v. Lubanga, ICC-01/04-01/06, Judgment, 14 March 2012, para. 1273).
13. It is respectfully submitted that the Tribunal has misunderstood the Defence submissions made in both its Application for Discharge filed 1st January 2012 (para. 92 to 100) and during the course of charge hearing. It is submitted that there is a necessary requirement to have contextual elements of a crime in order to be able to ascertain whether the offence has been established.
14. This is of particular importance when considering what constitutes an international crime as distinct from a domestic crime. For example, in Count 1 of 28 May 2012 Order, the Accused-Petitioner is charged with the alleged killing of “Pallab, student of Bangla College”. Without contextual elements it is impossible to determine how the offence can be categorized as a crime against humanity and not a single murder, punishable under the Penal Code. It is the inclusion of contextual elements, for example, “widespread or systematic” which determine that a killing falls within the category of a crime against humanity, and not murder.
15. In the absence of contextual elements of crime, in particular for the definition of crimes against humanity, it is submitted that the offence in Count 1 is classified as a murder punishable under the Penal Code and not as a crime against humanity. As a result, the killing of Pallab in Count 1 does not fall within the jurisdiction of the Tribunal, as found in section 3(2) IC(T)A and should not be framed against the Accused-Petitioner.
16. It is recalled that throughout Counts 1 to 6, the Accused-Petitioner has been charged with “participating”, “facilitating”, “substantial contributing” the commission of crimes “as specified in section 3(2)(a)(h) IC(T)A”. In Charges 2 to 6, he is additionally charged with “complicity” to commit such crimes “as specified in section 3 (2)(a)(h) IC(T)A”. It is noted that these modes of liability are not charged in the alternative, but rather the Accused is alleged to have committed all forms of liability at any one time.
17. It is submitted that in charging the offence in this manner, the Tribunal has failed to establish the legal characterization of the offence, contrary to section 16 (2) IC(T)A. Furthermore, it is highlighted that in charging several modes of liability in a single count defeats the strict right to adequate preparation of defence guaranteed in Article 14 (3) (b) ICCPR which is an important element of the guarantee of a fair trial and an emanation of the principle of equality of arms”. [HRC,Smith v. Jamaica (282/88) para. 10.4].
18. It is submitted that the Defence is unable to prepare a cogent defence in support of the Accused-Petitioner as the threshold for each mode of liability is distinct from one another. The legal burden, which the Prosecution bears in proving an accused participated in an offence, is that of “beyond reasonable doubt” pursuant to Rule 50 of the Tribunal-2 of Procedure. In contrast the threshold for complicity, which is recognised as an umbrella term for aiding and abetting (see Kai Ambos, ‘Article 25’ in O.Triffterer, Commentary, p. 756) has been recognised in international customary law as one of “substantial contribution” ” i.e. the abetment must have substantially contributed to the commission of the offence. This is provided for in the Prosecutor v Kvocka Appeals Judgment, whereby the ICTY Appeals Chamber stated that: “Whether an aider or abettor is held responsible for assisting an individual crime committed by a single perpetrator or for assisting in all the crimes committed by the plurality of persons involved in a joint criminal enterprise depends on the effect of the assistance and on the knowledge of the accused. The requirement that an aider or abettor must make a substantial contribution to the crime in order to be held responsible applies whether the accused is assisting in a crime committed by an individual or in crimes committed by a plurality of persons” (IT-98-30/1-A 28 February 2005, para. 90).
19. It is for this reason that international jurisprudence strictly adheres to the need for specific modes of liability in each count. For example, most recently (albeit in relation to a summons of an arrest warrant which is indeed a threshold lower than the indictment stage) the ICC Pre-Trial Chamber in Prosecutor v. Ruto, Kosgey and Sang, held: “Although the Prosecutor may generally charge in the alternative, he should be consistent throughout his Application about the actual mode(s) of liability that he intends to present to the Chamber. Moreover, the possibility for the Prosecutor to charge in the alternative does not necessarily mean that the Chamber has to respond in the same manner. In particular, the Chamber is not persuaded that it is best practice to make simultaneous findings on modes of liability presented \ in the alternative. A person cannot be deemed concurrently as a principal and an accessory to the same crime. Thus, it is the Chamber's view that an initial decision has to be made on the basis of the material provided, as to whether there are reasonable grounds to believe that Ruto, Kosgey and Sang bear criminal responsibility for the crimes against humanity that occurred in the specific locations in the Republic of Kenya, as discussed in section II above, either as co-perpetrators, indirect coperpetrators, or any other form of liability presented or that the Chamber finds appropriate (emphasis added).” (ICC-01-/09-01/11, Decision on the Prosecutor's Application for Summons to Appear for William, Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, 8 March at para. 36).
20. Further there is a recognised bar to convicting an accused for both his direct responsibility in the commission of a crime and his responsibility as a result of his superior responsibility. This was most recently upheld by the ICTY Trial Chamber in Prosecutor v Dordevic: “Where both Article 7(1) [planning, instigation, ordering and commission] and Article 7(3) [command responsibility] responsibility are alleged under the same count, and where the legal requirements pertaining to both of these heads of responsibility are met, a Trial Chamber should enter a conviction on the basis of Article 7(1) only, and consider the accused’s superior position as an aggravating factor in sentencing” (IT-05-87/1-T, Judgment, 23 February 2011, para. 1891).
21. For this reason, it is submitted that Counts 1 to 6 cannot be framed against the Accused-Petitioner in their current form.
22. In furtherance of the above submission, it is recalled that in paragraph 1 of Count 4 the Accused-Petitioner has been charged with the murder of Osman Gani and Golam Mostafa. In paragraph 2 of Count 4, the Accused-Petitioner is charged with the killing of “hundreds of unarmed villagers” including 24 specified victims. In paragraph 3 of Count 4, it is stated that the Accused-Petitioner is: “charged for accompanying the perpetrators to the crime scene and also aiding and substantially facilitating the co-perpetrators in launching the planned attack directing the non-combatant civilians that resulted to large scale killing of hundreds of civilians including 24 persons named above and also to cause brutal murder of two freedom fighters”. (28 May 2012 Order, p. 16).
23. It is submitted that the murder of Osman Gani and Golam Mostafa is a distinct offence from the alleged killings of the 24 specified victims and therefore Count 4 contains two separate incidents. As a result, it is submitted that this form of duplicitous charging is prejudicial to the Accused-Petitioner as it fails to differentiate between separate events within one charge even though the other 5 counts only specify one incident per charge. The end result is that any conviction or acquittal of an offence within a multi-offence count will not be recognized which is particularly important at the sentencing stage.
24. For this reason, it is submitted that as Count 4 stands, it is unspecific and contrary to section 16 ICT(A) as well as Bangladesh’s obligations under Article 14 (3) (a) ICCPR.
25. It is stated that nowhere in the Formal Charge, has any allegation been made that the Accused Petitioner is a member of Al-Badr or that he ever participated in operations of the Al-Badr. Furthermore, no nexus has been alleged by the Prosecution to exist between the Accused Petitioner and the Al-Badar in the Formal Charge.
26. On 07.05.2012, an ‘Application for correction of the date and time of the event in Count No-2 as well as for replacement, placement, omission and addition of some words in some places of the formal charge” was filed by the Prosecution. In paragraph 3 of the Application, the Prosecution prayed for inclusion of the phrases “Leader of Al-Badar” and “As group of individuals as well as ‘Al Badar Leader’ in the Formal Charge as and where the name of the Accused Petitioner Abdul Quader Mollah appeared in the Formal Charge.
27. It is specifically stated that the Prosecution has failed to produce any evidence, in the form of documents or witness statements, to establish a prima facie case of involvement of the Accused Petitioner with Al-Badr.
28. On 28.05.2012 this Hon’ble tribunal rejected the Application dated 7.5.2012 for inclusion of the phrases “Leader of Al-Badar” and “As group of individuals as well as ‘Al Badar Leader’ in the Formal Charge. For ready reference the relevant portion is quoted below: “Now let us come to the third application seeking amendment of the Formal Charge through some proposed addition, deletion and correction. We have perused the application. Having regard to submission made by both sides and provision contained in the Act, in this regard to submission made by both sides and provisions contained in the Act, in this regard, we are disinclined to accept what has been advanced by the learned prosecutor. The Act does not embody any provision to amend or supplement the Formal Charge submitted. A rule of procedure framed under the power given in the statute does carry the force of the substantive law—it merely supplements the procedure depicted in the statute. Intent of framing Rule 46A empowering the tribunal to exercise inherent power to meet the ends of justice, does not ipso facto mean that by indiscriminate exercise of such power opportunity is to be provided to either party to fill up lacuna. Besides, precedent allowing such amendment to Formal Charge, merely in exercise of inherent power, may open the door of bringing any plea which in not sanctioned under the Act. Therefore, the application dated 07.05.2012 praying amendment of the formal charges is however rejected ”
29. It is stated that although the Prosecutor’s application for identifying the Accused Petitioner as a leader or member of Al-Badr has been rejected, in its Order framing charge dated 28.5.2012, this Hon’ble Tribunal has described the Accused Petitioner as a member of the Al-Badr, which is tantamount to allowing the aforesaid application of the Prosecutor. It is submitted that the description of the Accused Petitioner as a member of the Al-Badr in the charge framing order contradicts the order of the Tribunal dated 28.5.2012, which is prejudicial to the Accused Petitioner, and as such, the charge framing order is liable to be reviewed for ends of justice.
30. For the abovementioned reasons, the Accused-Petitioner prays that the Hon’ble Tribunal exercise its discretion in the interests of justice as provided for in Rule 26 (3) and conducts an immediate review of the 28 May 2012 Order.