Tuesday, February 19, 2013

5 Feb 2013: Mollah final judgment, part 7

This is the seventh and final section of the judgment dealing with the conclusion and sentencing

To see part 1, click here - introductory sections
To see part 2, click here - introductory sections
To see part 3, click here - relevant and decisive factual aspects and charge no 1
To see part 4, click here - dealing with charges nos 2, 3 and 4
To see part 5, click here - dealing with charges, 5 and 6
To see part 6, click here - dealing with contextual requirements to quality offenses as crimes against humanity and other defense arguments
XXIV. Conclusion

418. Despite lapse of long 40 years time the testimony of P.W.s of whom three are live witnesses to the incidents of atrocities narrated in the charges does not appear to have been suffered from any material infirmity. Besides, no significant inconsistencies between their testimony made before the Tribunal and their earlier statement made to the Investigation Officer could be found.

419. Now, another question comes forward as to whether the accused can be brought within the jurisdiction of the Tribunal if we consider that the prosecution has not been able to prove that the accused committed the crimes proved as a member of Al-Badar force? The answer is ‘yes’. Section 3(1) provides jurisdiction of trying and punishing even any ‘individual’ or ‘group of individuals’ who commits or has committed, in the territory of Bangladesh any of crimes mentioned in section 3(2) of the Act. We have resolved the issue on the phrase ‘individual’ or ‘group of individuals’, as contained in section 3(1) of the Act of 1973, by way of amending the statute in 2009 together with the relevant Article of our Constitution. On this score as well, the accused cannot be relieved from being prosecuted and tried under the Act of 1973.

420. According to Section 3(1) of the Act of 1973 it is manifested that even any person (individual or a member of group of individuals) is liable to be prosecuted if he is found to have committed the offences specified in section 3(2) of the Act. That is to say, accused Abdul Quader Molla, even in the capacity of an ‘individual’ or member of ‘group of individuals’ comes within the jurisdiction of the Tribunal if he is alleged to have committed crimes specified in section 3(1) of the Act.

421. We are convinced from the evidence, oral and documentary, led by the prosecution that the accused, at the relevant time of commission of alleged crimes proved, acted as an atrocious member of ‘group of individuals’ in perpetrating the crimes. Accused's culpable association and conduct---antecedent, contemporaneous and subsequent, as have been found---all point to his guilt and are well consistent with his 'complicity' and 'participation' in the commission of crimes proved. As a result, we conclude that the accused Abdul Quader Molla had ‘complicity’ to the commission of the offences in relation to charge nos. 1, 2 and 3 for which he has been charged in the capacity of an ‘individual’ and a member of atrocious ‘group of individuals’.

422. According to section 4(1) of the Act of 1973 an individual incurs criminal liability for the direct commission of a crime, whether as an individual or jointly. In the case in hand, in dealing with the charge nos. 5 and 6 we have found that the accused Abdul Quader Molla himself had participated and accompanied the armed gang of perpetrators to the accomplishment of crimes and as such he is held criminally responsible under section 4(1) of the Act of 1973 for the commission of crimes proved as listed in charge nos. 5 and 6.

423. C.L. Sulzberger wrote in the New York Times, June 16, 1971 describing the horrific nature and untold extent of atrocities committed in the territory of Bangladesh. It shakes the conscious of mankind. It imprints colossal pains to the Bangalee nation. C.L. Sulzberger wrote that- “Hiroshima and Nagasaki are vividly remembered by the mind’s eye primarily because of the novel means that brought holocaust to those cities. Statistically comparable disasters in Hamburg and Dresden are more easily forgotten; they were produced by what we already then conceived of as “conventional” methods. Against this background one must view the appalling catastrophe of East Pakistan whose scale is so immense that it exceeds the dolorimeter capacity by which human sympathy is measured. No one can hope to count the dead, wounded, missing, homeless or stricken whose number grows each day. “ [Source: Bangladesh Documents: Volume, page 442: Ministry of External Affairs, New Delhi]

424. The above observation made on 16 June 1971 gives an impression as to the scale and dreadful nature of atrocities which were carried out through out the war of liberation in 1971. The offences for which the accused Abdul Quader Molla has been found responsible are the part of such atrocities committed in context of the war of liberation, 1971 in collaboration of anti-liberation and antagonistic political organisations namely Jamat E Islami, Muslim League, Nejam E Islami, group of pro- Pakistan people and the occupation Pakistani army with intent to annihilate the Bengali nation by resisting in achieving its independence.

425. Therefore, it must be borne in mind too that no guilty man should be allowed to go unpunished, merely for any faint doubt, particularly in a case involving prosecution of crimes against humanity and genocide committed in 1971 in violation of customary international law during the War of Liberation. Because, wrong acquittal has its chain reactions, the law breakers would continue to break the law with impunity.

426. ‘No innocent person be convicted, let hundreds guilty be acquitted’—the principle has been changed in the present time. In this regard it has been observed by the Indian Supreme Court that: “A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties.” [ Per Viscount Simon in Stirland vs. Director of Public Prosecution: 1944 AC(PC) 315: quoted in State of U.P Vs. Anil Singh : AIR 1988 SC 1998]

XXIV. VERDICT ON CONVICTION

427. For the reasons set out in this Judgement and having considered all evidence, materials on record and arguments advanced by the learned counsels in course of summing up of their respective cases , the Tribunal unanimously finds the accused Abdul Quader Molla

Charge No.1: GUILTY of the offence of ‘complicity’ to commit murder as ‘crimes against humanity’ as specified in section 3(2)(a)(h) of the Act of 1973 and he be convicted and sentenced under section 20(2) of the said Act.

Charge No.2: GUILTY of the offence of ‘complicity’ to commit murder as ‘crimes against humanity’ as specified in section 3(2)(a)(h) of the Act of 1973 and he be convicted and sentenced under section 20(2) of the said Act.

Charge No.3: GUILTY of the offence of ‘complicity’ to commit murder as ‘crimes against humanity’ as specified in section 3(2)(a)(h) of the Act of 1973 and he be convicted and sentenced under section 20(2) of the said Act.

Charge No.4: NOT GUILTY of the offence of ‘abetting’ or in the alternative ‘complicity’ to commit murders as ‘crimes against humanity’as specified in section 3(2)(a)(g)(h) of the Act of 1973 and he be acquitted thereof accordingly.

Charge No.5: GUILTY of the offence of murders as ‘crimes against humanity’ as specified in section 3(2)(a) of the Act of 1973 and he be convicted and sentenced under section 20(2) of the said Act.

Charge No.6: GUILTY of the offences of murder and rape as ‘crimes against humanity’as specified in section 3(2)(a) of the Act 1973 he be convicted and sentenced under section 20(2) of the said Act.

XXV. VERDICT ON SENTENCE

428. We have taken due notice of the intrinsic magnitude of the offence of murders as ‘crimes against humanity’ being offences which are predominantly shocking to the conscience of mankind. We have carefully considered the mode of participation of the accused to the commission of crimes proved and the proportionate to the gravity of offences. The principle of proportionality implies that sentences must reflect the predominant standard of proportionality between the gravity of the offence and the degree of responsibility of the offender. In assessing the gravity of the offence, we have taken the form and degree of the Accused’s participation in the crimes into account.

429. We are of agreed view that justice be met if for the crimes as listed in charge nos. 5 and 6 the accused Abdul Quader Molla who has been found guilty beyond reasonable doubt is condemned to a single sentence of ‘imprisonment for life’ And for the crimes as listed in charge nos. 1, 2 and 3 to a single sentence of ‘imprisonment for fifteen (15) years’ under section 20(2) of the Act of 1973. Accordingly, we do hereby render the following unanimous ORDER on SENTENCE.

Hence, it is

ORDERED

That the accused Abdul Quader Molla son of late Sanaullah Molla of village Amirabad Police Station Sadarpur District-Faridpur at present Flat No. 8/A, Green Valley Apartment, 493, Boro Moghbazar PS. Ramna, Dhaka is found guilty of the offences of ‘crimes against humanity’ enumerated in section 3(2) of the International Crimes (Tribunals) Act, 1973 as listed in charge no.s 1, 2, 3, 5 and 6 and he be convicted and condemned to a single sentence of ‘ imprisonment for life’ for charge nos. 5 and 6 And also for the crimes as listed in charge nos. 1, 2 and 3 to a single sentence of ‘imprisonment for fifteen (15) years’ under section 20(2) of the Act of 1973. The accused Abdul Quader Molla is however found not guilty of offence of crimes against humanity as listed in charge no.4 and he be acquitted thereof. However, as the convict Abdul Quader Molla is sentenced to ‘imprisonment for life’, the sentence of ‘imprisonment for 15 years’ will naturally get merged into the sentence of ‘imprisonment for life’. This sentence shall be carried out under section 20(3) of the Act of 1973.

The sentence so awarded shall commence forthwith from the date of this judgment as required under Rule 46(2) of the Rules of Procedure, 2012 (ROP) of the Tribunal-2(ICT-2) and the convict be sent to the prison with a conviction warrant to serve out the sentence accordingly.

Let copy of the judgment be sent to the District Magistrate, Dhaka for information and causing necessary action.

Let certified copy of the judgment be furnished to the prosecution and the convict at once.

Justice Obaidul Hassan, Chairman
Justice Md. Mozibur Rahman Miah, Member Judge Md. Shahinur Islam, Member

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