It is submitted that the Accused’s movements are accounted for between 11 March and November 1972, placing him in Amirabad village in Faridpur, which is of considerable distance from Mirpur district of Dhaka in which all of the allegations pleaded for in Charges 1 to 6 take place. The Defence raises alibi for this period and relies on the alibi considerations cited to above.
It is submitted that at the outbreak of Liberation War towards the end of March 1971, the Accused was a final year physics student at Dhaka University awaiting to take his master exam. However, on 7 March 1971, Mr. Sheikh Mujibur Rahman ordered for all institutions to strike and therefore the Accused’s examinations were postponed to a date to be confirmed. [DW 1, Examination in chief, 15 November 2012]
On instruction from Professor Innas. Ali, Head of Physics Department, students were told to return to their family villages and await updates on the re-scheduled examinations. Subsequently, on 11 March 1971, the Accused returned to Amirabad village in Faridpur and resided with Peer Dhola Mia. Whilst in Amirabad, Peer Dhola Mia provided the Accused with funding so as to enable him to operate a business entitled “Chouddorshi Bazar”: "It was officially named as Satroshi Bazar although it was known as Choddorshi Bazar. The Bazar formally sits at Saturday and Wednesday but it sits every day. I went to that Bazar in every Saturday and Wednesday in every week in 1971 and almost 1972 and sit that shop and do business. I communicated with Advocate Mosarof Hossen, MPA and with Shahjahan Talukder, President of Sadarpur Awami League. I was introduced with Mr. Lutful Karim, Upozila Commander of Sadarpur Police Station when our area was free at November 1971. From that time I had communication with them."[DW 1, Examination in chief, 15 November 2012]
Although Peer Dhola Mia has passed away, the Accused’s movements are accounted for by DW 2 (Susil Condro Mondol) DW 3 (Muslem Uddin Ahmed ) and DW 6. (Hafez AIM Loqueman). The latter was an acquaintance of the Accused whilst he was a physics student at the University of Dhaka as he would often see him praying in the mosque: “AQ Molla used to come to offer his prayer and in that way I was introduced with him”.(DW 6, Examination in chief, 13 December 2012)
In his examination in chief, he confirmed that he saw the Accused leaving Dhaka following instruction from the university authorities: "After the historical speech of Bangabandhu, in 7th March 1971, the non-cooperative movement started. All classes of the university were withheld due to that movement. As the classes were withheld, I saw Mr. AQ Molla was going home with his bag and baggage. Seeing me he exchange salam and said to me “I am going home. Do not know when I will be able to come back. If I made any mistake, forgive me”. After that students left the hall as no class was going on. But I stayed in the hall."
He further testified to the fact that he only saw the Accused return to Dhaka once classes resumed at the end of 1972: “After that, in March 1972, when classes were resumed, students begin to come back. At the end of 1972 or on the beginning of 1973, I saw AQ Molla had returned in Shahidullah Hall. After exchanging greetings, he told me that all those time he was at home”.
DW 2 knows the Accused on account of the fact the Accused was one of several pupils to have private tutorials with the resident teacher, Sontush Babu, living in DW2’s home. In his examination in chief, DW 2 confirmed that: “There stopped schools and colleges in Dhaka after 7 March 1971. Quader Molla came to his elder sister’s house near at my home. I asked him when he came.He replied he came before 3 days earlier and he was at the house of Dhola Mia Peer [preacher]. Quader Molla informed more that, peer urges to stay at his home and he stay there later. There was a Bazar named Chouddoroshi Bazar where peer had shop. Peer told him to do business there. He wouldn’t come home generally. He stayed at the house of peer. We saw him in business when we went to bazar for shoping. After being independent of the country Quader Molla went to Dhaka again for higher study after 9/10 months later of independence”. (DW 2, Examination in chief, 21 November 2012 )
Similarly, DW 3 studied with the Accused for a number of years at Amirabad Fajlul Hoque Institution, Rajendro College (Faridpur) and subsequently, Baishroshi Shibsundori Academy. (Examination in chief, 26 November 2012 ) DW 3 confirmed that during these years, the Accused would reside with Peer Dhola Mia; “since the house of Abdul Quader Molla was far from that school. Abdul Quader Molla stayed at the house of Dhola Mia peer”.
In his examination in chief, DW 3 further confirmed that during the Liberation War the Accused was present in Amirabad and running the Chouddhoroshi Bazar: "I have met with Abdul Quader Molla after 8/10 days at Sadarpur after the speech of Bongobondhu deliberated at 7th march. He informed me that he came after 4/5 days later of speech of Bongobondhu. I have met with him again after a month at Choudhoroshi Bazar. I asked him what he was doing at the following days and he replied me that he was doing business with the son of Peer at Chouddhoroshi Bazar. I have also seen him doing business at the mentioned bazar. He went to Dhaka after a few months of 1972.
The Accused’s movements are further corroborated in the ‘negative’ sense in that both DW 4 and DW 5 confirm that they did not see the Accused in Mirpur during the alleged commission of offences in relation to Charges 1 and 5 or hearing of his involvement in such allegations. This is despite the fact that both testified to being eyewitnesses to the events as detailed below.
In light of the strength of the alibi in this case, it is submitted that the Prosecution has been unable to prove the Accused’s guilt beyond a reasonable doubt with regards to Charges 1 to 6.
Establishment and function of Islami Chatra Sangha; Razakers and Al-Badr
It is generally accepted that the Islami Chatra Sangha (hereinafter “ICS”) was a student group. However, the Prosecution witnesses offer no evidence as to the date of or the persons responsible for its establishment. It further fails to establish what the common purpose or ideology of such a group was beyond recognising it as a university student body.
The Prosecution offers no evidence on the origins of the Razakars or their structure of command, however it has put forward allegations that they were a militant group fighting for the maintenance of a united Pakistan (PW1, Examination in chief, 3 July 2012; PW 2, Examination in chief, 10 July 2012.) and that their local camps were situated in the Physical training institute in Mohammadpur, Gatarchor and in Atibazar. (PW 1, Cross examination, 8 August 2012 )
The Prosecution offers no evidence on the origins of the Al-Badr, however it has put forward allegations that it is a militant group (PW1, Examination in chief, 3 July 2012; PW 2, Examination in chief, 10 July 2012; PW 9, Cross examination, 13 September 2012.) and a subsidiary of ICS. PW 12, the Chief Investigating Officer, cites a book entitled ‘Sun set at Midday’ (Sun set at Midday, Karitas Publication, December 1998, p. 97. ) in which the author claims “The workers belongings to Purely Islami Chatra Shongo were called Al-Badr”.(PW 12, Examination in chief, 8 October 2012.)
Establishment of Razakar and giving controlling power under the Pak Army.
On 2nd August 1971 with an ordinance no. X of 1971 Called “The East Pakistan Razakars Ordinance, 1971” promulgated by Law (Legislative) Department of the Government of East Pakistan, Razakar force was established.
On 7th September, 1971 with an order the Razakars was given under control and command of Pakistan Army.
The position of the Accused within the Islami Chatra Sangha
It is not disputed that the Accused was a member of the ICS. Both the Prosecution and the Defence agree that the Accused joined the ICS whilst at Rajendro College, during which time he was selected President of the ICS Rajendro College, and that following his move to the University of Dhaka in 1970, he was elected President of Dhaka Hall (now Shahidullah Hall) unit and he was the president of 13 Activist (PW 12, Examination in chief, 8 October 2012; DW 1, Cross examination, 18 November 2012). Prosecution witnesses confirmed the Accused’s position as a leader of the ICS. (PW 1, Examination in chief, 7 July 2012; PW 4, Examination in chief, 24 July, 2012; PW 6, Examination in chief, 1 August 2012; PW 9, Examination in chief, 26 August 2012; PW 12, Cross examination, 23 October 2012; PW 12, Cross examination, 1 November 2012; PW 12, Cross examination, 4 November 2012)
Prosecution’s allegations regarding the role of the Accused as a leader of the Islami Chatra Sangha
The Prosecution allege that as a leader of the ICS, the Accused was firstly, in collusion with the Pakistani Army and other anti-liberation groups such as the Razakars and the Al-Badr, and secondly, training persons to fight against the separation of Pakistan.
Collusion with the Pakistani Army and the Razakars and the Al-Badr. With regards to the first point, PW 1 and PW 7 both alleged that the Accused, in his capacity as a leader of the ICS, organised a meeting between the Pakistani Army and the Razakars to plan the attack of 25 November 1971 on the villages of Khanbari and Ghotachar (PW 1, Examination in chief, 7 July 2012; PW 7, Examination in chief, 8 August 2012), and subsequently took part in the attack (PW 7, Examination in chief, 8 August 2012). PW 1 went as far as to allege that the Accused “led” the local Razakars in the attack (PW 1, Examination in chief, 7 July 2012). PW 9 alleged that the Accused led some 700 to 800 members of Al-Badr along with the Pakistani Army to Mirpur in the war of liberation (PW 9, Cross examination, 13 September 2012). PW 3 and PW 6 both alleged that the Accused participated and assisted the Pakistani Army in the attack of the family of Momema Begum (PW 3) and the attack on the village of Alubdi (PW 3, Examination in chief, 17 July 2012; PW 6, Examination in chief, 1 August 2012) PW1 claims to have seen the Accused “with associates and arms” standing outside the Physical Training Centre in Mirpur, allegedly a Razakar and Al-Badr camp (PW 1, Examination in chief, 7 July 2012 ) Finally, PW 12 alludes to the Accused’s relationship with the Razakars (PW12, Cross examination, 4 November 2012).
Training of ICS members: With regards to the second point, PW 9 alleged that the Accused trained circa 70 to 80 members of ICS during the time of the election “with a view to saving Pakistan” (PW 9, Examination in chief, 26 August 2012).
Defence’s case regarding the role of the Accused as a leader of the Islami Chatra Sangha
As stated above, the Defence does not disagree that the Accused was President of the ICS at Rajendro College unit and Dhaka University, Shahidullah Hall unit. However it disagrees with the Prosecution’s allegations concerning the role of the Accused in the Razakars, the Al-Badr or in collusion with the Pakistani Army. It is recalled that all the evidence upon which the Prosecution bases its allegations that the Accused led or was part of the Razakar force, the Al-Badr or the activities by the Pakistani Army are based on unattributed hearsay or extremely weak identification evidence.
The Accused (DW1) refuted the Prosecution’s allegation that the leadership and activities of the ICS were subsumed into the Al-Badr (DW 1, Cross examination, 19 November 2012). Further, he denied participating in any activities at the Physical Training Center around the time he was allegedly seen outside it (DW 1, Cross examination, 19 November 2012)
Furthermore, it is submitted that the Prosecution’s case concerning the role of the Accused in any group other than the ICS are unreliable. PW 4 was unable to confirm whether the Accused entered the house of Meherun Nesa or was present at the time of her death (PW 4, Examination in chief 24 July 2012). In addition, it transpired that despite alleging that the Accused organised the meeting at the house of Dr Joinal to plan the attack on 25 November 1971, PW 1 never included, mentioned or made any claims against the Accused in his case filed CR case on 17 December 2007. Indeed, his description of the events of the 25 November 1971 do not include the meeting in Gatarchor on 23/24 November, nor the alleged participation of the Accused (PW 1, Examination in chief, 3 July 2012.) Finally, PW 1 has not mentioned the Accused once in interviews between 1972 and 2012 (PW 1, Cross examination, 8 August 2012)
Further, in a number of their submissions the Prosecution allege that a man called Akter Gunda assisted the Accused. The Prosecution never proffer any identification or adequate identification of this person, nevertheless, he is a main actor in Charges 1, 2, 3 and 6. (PW 3, Examination in chief, 17 July 2012; PW 9, Examination in chief, 26 August 2012; PW10, Examination in chief, 17 October 2012.) Finally defence submission is that, 5 Charges out of 6 brought against the Accused by the prosecution were taken places between Mach 26th March to 24th April 1971 before the establishment of Razakar. Without establishment of a organization ( Razakar or Al-Badar) how a person may take part in an incident being a member of this organization? On the other hand command and control of this organization was under the Pak Army. On which capacity and capability Mr. Molla got the commanding capacity upon the Pak Army are not clarified by the prosecution adducing any kind of evidence.
The contextual elements
Criticism of indictment for acting 'ultra fires' (beyond power)It is crucial to draw a distinction between the introduction and the charges themselves. Whilst it is not uncommon to have a summary of procedural history at the beginning of an indictment and, further, to address the submissions by the parties on each of the charges, it is submitted that the Tribunal acted ultra vires by drawing conclusions in its introduction on the following facts:
The creation, command structure and role of forces known as the Razakars, the Al-Badrs, the Al-Shams and the Peace Committee: “The Pakistan government and military setup number [sic] of auxiliary forces such as the Razakars, the Al-Badars, the Al-Shams and the Peace Committee etc, essentially to collaborate with the military in identifying and eliminating all those who were perceived to be sympathized [sic] with the liberation of Bangladesh, individuals belonging to minority religious groups especially the Hindus, political groups belonging to the Awami League and other pro-independence political parties, Bangalee intellectuals and civilian population of Bangladesh.” (Order No. 11, 28 May 2012, p. 3)
The Defendant’s membership and leadership of student groups The Indicment reads that: “While he was a student of BSC in Rajendra College in 1966, he joined the student front known as ‘Islami Chattra Sangha’ [ICS] and he held the position of president of the organization. While he was student of the Dhaka University, he became the president of ICS of Shahidullah Unit. In 1971, he organized the formation of Al-Badr Bahini with the students belonging to ICS which allegedly being in close association with the Pakistani army actively aided, abetted, facilitated and substantially contributed in committing horrific atrocities in 1971 in the territory of Bangladesh”.
In response to the above, it is submitted that the Tribunal’s role at this stage is merely to confirm whether in its opinion there is sufficient evidence to establish substantial grounds to believe that an accused is criminally responsible under the ICTA. Therefore, it cannot conclude findings on: the command structure of these groups; their role; who was responsible for their organization and what acts they are alleged to have had committed. It is recalled that the Prosecution only alleged such facts against the Defendant and that the ICT is based on an adversarial system (See section 10 ICTA). Therefore, any conclusions on contentious facts reached by the Tribunal in the introduction to the indictment must not be regarded as part of the charges against the Defendant.
For this reason it is highlighted that the assumptions made in Order No. 11 dated 28 May 2012 regarding the contextual elements of the crimes and role of the Accused are not in evidence, as presented by the Prosecution, and cannot be used to reach a conviction against the Accused.
Contextual elements have not been established
The Defence notes that the Prosecution has failed to identify which evidence it relies on in support of fulfilling these contextual elements. In the absence of this, the Defence has analysed the Prosecution case in order to identify the Prosecution’s case in this respect. It has found that the substance of the Prosecution’s case is adduced in the testimony of PW 11 and PW 12.
As the Chief Investigation Officer, PW 12 states that he has: “collected many books of the Liberation War and its background by reading its related parts for preparing the case. It was included in the complaint register on 21/07/2010 as serial no. 1…I was given the case no. 34 dated 31 December 2007 of Keranigonj Thana according to memo no. ICT/98/10 dated 22/07/2010 through office of honorable Registrar of ICT. I realized after analyzing the two complaints that, the occupant Pakistani army and their local accomplices and the mentioned Accused and their party along with their group of accomplices occurred, killing, genocide, setting fire jointly in the area of Mirpur and Keranigonj during the Liberation War from 25 March to 16 December”. (PW 12, Examination in chief, 8 October 2012.)
Similarly, PW 11’s rudimentary investigative skills allegedly proved that: the number of victims was approximately of 4 lacks or 4.5 lacks”. (PW 11, Examination in chief, 7 October 2012). This was based upon the collection of a number of books including “a book named “Akttorer Juddho Shishu” from Dr. Sajid Hosain and a different book written by Australian physician Dr. Geoffery Davis”.
PW 12 further alleged that the investigative team: “collected a book named “Sun set at Midday” along with the other books from Sagor publishers…which was published in December 1998…it is written at paragrapgh 2 of page 97 that “the workers belonging to purely Islami Chatra Shongo were called Al-Badr (emphasis added)”. (PW 12, Examination in chief, 8 October 2012)
In relation to the specific role of the Accused, PW 12 testified that “we came to know about Abdul Quader Molla during my investigation that, he joined Islami Chatro Shongho of Shaidullah Hall of University of Dhaka in 1970”.
The Defence submits that as with other elements, including the allegations in Charges 1 to 6, the Prosecution must prove beyond a reasonable doubt that the contextual elements of the crimes are met. In this regard the same evidential considerations listed above apply. This is of particular note in these proceedings whereby adjudicated facts are not an option, given that this is the first case before this tribunal. There has also been no judicial notice of matters that go towards satisfying the contextual elements.
The Defence submits that even the testimonies of PW 11 and PW 12 must be subjected to the same standards of other witness statements. In this respect, it is submitted that the testimonies of PW 11 and PW 12 are no more than hearsay sourced from books published over 30 years after the event. The Defence demands that an investigator located on the ground in Bangladesh should be expected to exercise diligent care in determining the veracity of the allegation.
The information PW 11 and PW 12 relied on are nothing more than sweeping, generic statements are do not by any means establish that beyond a reasonable doubt that “the occupant Pakistani army and their local accomplices and the mentioned Accused and their party along with their group of accomplices occurred, killing, genocide, setting fire jointly in the area of Mirpur and Keranigonj during the Liberation War from 25 March to 16 December”.(PW 12, Examination in chief, 8 October 2012)
The contextual elements of crimes against humanity still need to be proven like any other element of an international crime. The prosecution must produce evidence for them and they must be proven beyond a reasonable doubt. The superficiality of the investigating officer’s assessment is simply not capable of proving the existence of a widespread or systematic attack against a civilian population in 1971. The Prosecution could have provided evidence from experts, journalists, historians and crime base witnesses to prove this point. It has failed to do so, and the Defence asks the Tribunal to put weight on this gross failure to provide logical evidence.
The label of an “international crime” needs to be preserved and not be extended by semantic inflation. Serious crimes like rape or murder are serious wherever they are committed, but these crimes only become internationalized in certain specified contexts. It is not necessary to internationalise every serious crime, because domestic law enforcement is capable of prosecuting such offences. It is only when this domestic apparatus breaks down that the need for “international crimes” arises. Furthermore, the Defence submits that the Prosecution has failed to establish that the Accused occupied any meaningful position of authority of the student group ICS whilst the university was suspended and the Accused had returned to Faridpur. The Prosecution has also failed to establish that the Accused was a member of Al-Badr and possessed any position of authority in this regard. It has also failed to establish that the Accused had any authority over the Pakistani Army so as to issue an order for a commission of an offence. The Defence recalls that in order to be complicit in a crime, either by ordering, planning, aiding or abetting, an accused must have substantial contributed to the crime.