Tuesday, September 17, 2013

Quader Molla appeal, day 14: Defence arguments

15 May 2013
To see previous day's proceedings

Barrister Razzaq was present to represent Mollah. He went to dais and continued his submission on legal issues concerning this particular appeal. However, just before Razzaq started his submission, the bench informed him they have rejected the application for providing ‘Division’ (certain privileges in the prison) to the accused petitioner Mollah under Jail Code. This had been submitted yesterday and the bench heard the both parties. The bench did not read out any written order in this regard. Razzaq, the counsel for Mollah did not make any comment about the bench’s decision inside the courtroom.

Mr Razzaq started his submission with following words, “I was on the element of murder under the crime against humanity. I shall continue that and I am going to rely on some case laws in doing so. I have stored all those case laws in this CD and I am now providing copies of this for your lordships.”

He then provided 6 CDs to bench officers containing the cases on the element of murder under crime against humanity. Sinha J. then asked Razzaq to mention facts of those cases. Razzaq replied, “We have provided you the CDs. I believe you will able to find the facts in the case and the cases have been sorted chronologically.”

Mahmood J. asked Razzaq to provide them the list of websites from where they have downloaded the case so that he may be able to access those cases from his iPad.

Razzaq replied that he will provide them the same.

Mr Razzaq then finally started his submission. He started, “the first case I am citing is an ICTY case at page 23, paragraph 91 (of the case volume they have provided to the Bench).” He then submitted, “There are lot of crimes under section 3A of the ICT Act 1973.” And the CJ asked him, “And which one you are charged with?

Razzaq then referred the second case at page 26; it was an ICTR (trial chamber) case named Prosecutor vs Bisenjimana and submitted that paragraphs 48 and 49 of this case is relevant to this matter which actually says, “attack must be on civilians”. Chowdhury J. argued, “the case is based on a war situation.”

Razzaq replied, “We are not going into that, however, the preamble of our constitution says that there was an war between Bangladesh and Pakistan. And later on India join the war; it was an international armed conflict as the constitution is the supreme law of the country.”

Razzaq then moved to the next case. It is also ICTR case named Prosecutor vs Semanza. The relevant paragraph is 330 which he read out before the bench. And then he submitted, “charge No. 4 relates to only 2 freedom fighters, therefore, it is not crime against humanity.”

He referred another case and referred paragraph 114 where it has been decided, “if someone takes arms in his hand he becomes combatant.”

Razzaq then referred to paragraph 131 at page 69 of ICTB judgement. Chaowdhury J. argued that “this is not polticial.” Razzaq then referred paragraph 71 at page 72 of the same ICTB judgement.

After that Razzaq showed the relevant international provision on the element of crime against humanity “Attack must be systematic and wide speared.” First, he referred ICTY legislation at page 130 of his bundle. Here the relevant provision is at article 5 at page 135 and he readout the article. Then he referred Rome Statute at page 29. Here the relevant provision is at article 7 at page 32 and he readout the article. After that, he referred ICTR legislation 1994 at page 144 and here the relevant provision is at article 3 at page 148 which he read out. He further referred Cambodian legislation at page 91. Here the relevant provision is at article 5 at page 92 and he readout the article. He finally referred the Sierra Leone legislation at page 121 and the relevant article is 2. And he readout the article.

Razzaq summed up that, “in the ICTY legislation the element ‘wide speared and systematic’ was not present. It was introduced first in the ICTR legislation.” He then referred an ICTY case at page 35. Here the relevant paragraph is 646 at page 46. The CJ then asked him, “What is your proposition?” Razzaq replied, “this element of crime against humanity is not present in our legislation.”

Razzaq then submitted, “There are differences between genocide and crime against humanity; and crime against humanity and homicide. Genocide was not in the 1945 (Nuremberg Agreement) because it was not in the customary international law. Genocide Convention came into force in 1948 but we know people were killed in the gas chamber by Nazi force which was not characterised as crime of genocide.” He then added, “Our ICTB accepted part of my argument i.e. “Wide speared OR (not and) Systematic” but we are not satisfied. That’s why we are saying, “Wide speared AND systematic.” He then referred page 36, particularly paragraph 46 of the ICTB judgement.

Chowdhury J. then told the counsel for convicted petitioner, “Any international document does not ipso facto become international customary law. It has to be followed for long time.”

Razzaq replied, “My argument is- killing has to be systematic and widespread.” He then moved to paragraph 648 at page 37. But Chowdhury J. argued, “Here, they have not said widespread; they have in fact said here, Organised and systematic.” Razzaq then further submitted, “law has changed since Nuremberg, ICTR and ICTY. However, only Nuremberg is applicable for us because crime has to be there at least. Although retrospective effect can be given but crime has to be there under the customary international law.”

Razzaq started his submission with, “I was submitting on one of the elements of crime under humanity i.e. attack must be wide speared and systematic. International Law Commission Report, 1996 (48th Session) at page 32 also supports our argument.” He read out the definition and commentary.

He then submitted, “the Charter of Nuremberg trial (Article-6) does not include such a provision but in many cases before it, it considered that the crime was systematic.” He further submitted that, “International Law commission report is a part of customary international law”.

He then moved to page 89 of part 1 (judgement) and then submitted, “Section 3 (2) (a) is incompatible with the international jurisprudence. Article-5 of ICTY legislation did not require this (wide speared and systematic nature of attack).” He then referred to the ICT judgement and submitted, “My submission is, the tribunal lordships have accepted that; partially though.”

He then moved to page 32 of the latest judgement by the tribunal-1 (Sayedee’s matter) but CJ stopped him saying that, “It is a subjudice matter (appeal is pending before the same court)”. Razzaq replied, “I shall just refer the appeal No. 40 of 2013, page 32, subparagraph 2 (of paperbook no.-1) where their lordships have agreed that the attack must be ‘wide speared OR systematic’ and my submission is it must be wide speared AND systematic’. If your lordship has any doubt then I shall remove that by the way of my submission.”

He then referred an ICTY (trial chamber) judgement at page 39. Here the relevant paragraph 236 is at page 40 where the elements refer to ‘large scale’ and ‘systematic’. He referred the next case at page 41 which is a well-known ICTR case. Here the relevant paragraph 123 is at page 42. After that he referred another well-known case at page 43. Here the relevant paragraph he mentioned was 580 at page 44. He then submitted that “the concept of systematic means ‘thoroughly organised’.” Razzaq then referred his next case at page 49 which is also an ICTY case decided in 2001. Here the relevant paragraph he mentioned was 179 at page 50. Then he said, “My submission is the offence is not crime against humanity; it is totally redundant.”

Razzaq then moved to page 53, article-6 of Nuremberg Charter and readout the 3rd line from top. He then moved to article-7 of the Statute of ICC at page 58. Here the relevant paragraph he read out was paragraph-2 at page 59. These provisions relates to one of the elements of crime against humanity- “attack directed to a civilian population”. He then submitted, “We are member of ICC.”

He then referred the next case which was an ICTY case. The relevant page he referred was page 62 of his bundle. Razzaq then referred couple of cases. The last one was a Sierra Leone case at 64. The relevant page he mentioned was page 66. He mentioned that the prosecutor in this case was a very famous member of American Bar. Chowdhury J. asked Razzaq to read paragraph 41 from the top of this case and Razzaq read out.

It was 1 pm then and the CJ adjourned the hearing until next day.

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