Tuesday, September 17, 2013

Quader Molla appeal, day 17: Defence arguments

27 May 2013

Razzaq went to the dais and started to read from paragraph 200 of the judgement by ICTB regarding relating to charge no 1
200. It is argued by the defence that the event of killing of Pallab was an isolated crime; even it is admitted to have taken place at the relevant time. This argument does not fit to the context prevailing at the relevant time. Besides, even a single murder or killing constitutes an offence of crime against humanity if it is found to have been perpetrated as a part of attack targeting unarmed ‘civilian population’. It is now settled jurisprudence that even a single or limited number of acts on the accused’s part would qualify as a crime against humanity, unless those acts may be said to be isolated or random, provided all other conditions being met.
201. The appeal Chamber of ICTR has observed in the case of Nahimana, Barayagwiza and Ngeze, [ November 28, 2007, para. 924] that – “A crime need not be carried out against a multiplicity of victims in order to constitute a crime against humanity. Thus an act directed against a limited number of victims, or even against a single victim, can constitute a crime against humanity, provided it forms part of a ‘widespread’ or ‘systematic’ attack against a civilian population.”
202. Next, section 3(2)(a) of the Act of 1973 describes that the attack must be committed ‘against any civilian population’. This requirement is consistent to the jurisprudence that the acts must be ‘directed against’ the population i.e. it must be ‘the primary object of the attack’.
203. The context of war of liberation in 1971 and pattern of launching attack causing murder of Pallab for which the accused has been charged (Charge No.01) with by itself suggests that the murder was not an isolated crime.
204. The learned defence counsel, by drawing attention to the CD (Material Exhibit-I series) argued that P.W.2 Syed Shahidul Huq Mama in an interview with the BTV, in narrating the atrocious events committed in Mirpur in 1971 has not made any account involving the present accused Abdul Quader Molla with any of events for which he has been charged with. Thus, his testimony made in Tribunal is not credible and it suffers from contradiction.
205. It appears that P.W.2 Syed Shahidul Huq Mama admitted, on cross-examination, that he on 20 April 2012 made an interview in a program titled ‘Ekattore Ranangoner Din guli’ in Bangladesh Television (BTV) wherein he described the events committed in the locality of Mirpur-Mohammadpur during the war of liberation in 1971 and he attempted to portray the correct account. But the journalists are in practice to exclude part of his narration, even add new words to it for which he is not responsible.
206. First, earlier statement or any account made to any non judicial forum is not evidence and it may simply be used to see inconsistencies or omissions with the evidence made in court. The explanation offered by P.W.2 is reasonable and thus if such prior interview is found to have not contained any narration hinting involvement of the accused with any of atrocities alleged committed in Miprur his sworn testimony made in Tribunal is not liable to be brushed aside, provided if his evidence in its entirety inspires sufficient weight in light of attending circumstances. Second, P.W.2 does not claim to have witnessed the accused in committing the event of killing Pallab. If really he had any motive he could testify falsely by claiming that he saw the accused committing the crime alleged. But he did not do it. This demeanor is appositely relevant in assessing his sworn testimony made in Tribunal.
207. Therefore, the Tribunal, in particular taking into account the demeanor of the P.W.2 and the explanation offered for the difference, if any, notes that his oral evidence made before us is not rendered to be contrived in nature and any of his prior account made in TV interview, for the reason agitated by the defence, cannot be the lone index in rejecting the evidence of P.W.2, whether in whole or in part.
208. Defence failed to refute the incident of murder of Pallab on the date time and in the manner as have been alleged. It is the fact of common knowledge that such pattern and systemized atrocities were committed through out the period of nine months in the land of Bangladesh and as such merely considering the number of victim of crime or the fact that an event related to single murder it is not correct to infer that the event of murder of Pallab was an isolated crime. The context in its entirety itself legitimately establishes that murder of Pallab was the outcome of a part of ‘systematic attack’ directed against member of ‘civilian population’.
209. From the unimpeached version of P.W.2 we have found that accused Abdul Quader Molla was culpably associated with Aktar Goonda and local Bihari extremists who during the early part of war of liberation committed serious crimes targeting the Bangalee and pro- liberation people residing around the Mirpur locality. It is to be noted that ccircumstantial evidence is evidence of circumstances surrounding an event or an offence from which a fact at issue may be reasonably inferred. Circumstantial evidence may be necessary in order to establish an alleged fact.
210. Proof of all forms of criminal responsibility can be given by direct or circumstantial evidence. Although it is proved that the local Bihari extremists and Aktar Goonda were the main offenders, yet it is proved beyond reasonable doubt that accused Abdul Quader Molla, for the reason of his continuing culpable association with the principals, had ‘complicity’ to the criminal acts constituting the offence of Pallab killing as he ‘consciously’ used to maintain such culpable association with the perpetrators in materializing the design of Pakistani occupation forces and Jamat E Islami the potential pro-Pakistan political organisation to extinguish the unarmed Bangalee and pro-liberation people and Awami league the political party which had leading role in encouraging the Bangalee nation for its self determination and independence.
211. The accused himself need not have participated in all aspects of the alleged criminal conduct. [ Stakic, (Trial Chamber), July 31, 2003, para. 439]. The actus reus of aiding and abetting a crime may occur before, during, or after the principal crime has been perpetrated [Blaskic, (Appeals Chamber), July 29, 2004, para. 48]. Accordingly, participation may occur before, during or after the act is committed.
212. We have got in the case on hand that the accused Abdul Quader Molla is not alleged to have committed any of crimes individually. It is proved that the accused used to maintain ‘culpable association’ with the local group of Bihari goons who were extremely antagonistic to pro- liberation civilians of Mirpur even just before commission of the crime alleged. His prior conduct and ‘culpable association’ is sufficient to connect him with the actual accomplishment of the attack constituting the offence of murder of Pallab as crimes against humanity perpetrated by his accomplices, the local Bihari goons. Committing a crime enumerated in the Act of 1973 may be done individually or jointly with others. Committing such crime may also be said to have been participated by the accused if he is found to have provided moral support or encouragement by his act or acts to the principals, even if he was not present at the crime scene. In light of this established facts and conduct of the accused, the above principles enunciated in the case of ICTY, as regards participation and conduct of accused forming attack provides support in holding the accused Abdul Quader Molla responsible particularly for the crimes alleged as listed in charge no. 1.
213. On cumulative evaluation of testimony and relevant facts and circumstances we have found that accused Abdul Qauder Molla and his Bihari accomplices masterminded and executed the killing of Pallab, a civilian, as a part of attack.
214. It is thus validly inferred that the accused having ‘awareness’ as to the consequences of acts and conduct of those Bihari perpetrators continued his association with them. It was not necessary that the accused must remain present at the crime site when the murder of Pallab was actually committed. In this regard the Tribunal also notes that “actual physical presence when the crime is committed is not necessary . . . an accused can be considered to have participated in the commission of a crime . . . if he is found to be ‘concerned with the killing.” [Tadic, (Trial Chamber), May 7, 1997, para. 691]
215. The accused Abdul Quader Molla is thus found to have had ‘complicity’ to the actual commission of killing Pallab in the manner by bringing him forcibly from Nawabpur. The reason of targeting Pallab was that he was in favour of pro-liberation activities and as such it may be unambiguously presumed that killing him was in furtherance of systematic attack directed against civilian population. As a result, the accused incurs criminal liability for having his ‘complicity’ to the commission of the murder of Pallab constituting the offence of crime against humanity as specified in section 3(2)(a)(h) of the Act of 1973 which is punishable under section 20(2) of the Act.
As soon as he finished reading out that, he commented, “..this is the finding, my lord. My submission is- this finding is not based on the facts.” He further submitted, “My lords, you remember that there are 2 witness regarding this charge P.W.-2 and P.W.-10.

Razzaq then made his submission on the probative value of hearsay evidence. He readout paragraph 174 of the judgement which is basically defence submission on this issue. 
174. Mr. Abdur Razzak the leaned senior Counsel for the defence has submitted that the charge no.1 is based on unattributable hearsay evidence. The event of Pallab killling is admitted. But in absence of any other corroborative evidence merely on the basis of unattributable hearsay evidence the involvement of the accused cannot be concluded. In support of his contention he has cited a decision on the confirmation of charges in the case of the Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui [(ICCC: Pre-trial Chamber I: 30 September 2008): Page 225 of the Final Argument Pack submitted by the defence]. The learned defence counsel added that anonymous hearsay evidence does not carry probative value, by citing another decision in the case of the Prosecutor v. Kajelijeli [(ICTR Trial Chamber : case no. ICTR-98-44A-T 01 December 2003): Page 230 of the Final Argument Pack submitted by the defence].
Afterwards, he read out paragraph 175 which is prosecution’s reply to defence’s submission on this issue. And finally he read paragraph 177 which is the tribunal’s finding on this issue. 
175. In reply, the learned Prosecutor has argued that hearsay evidence is admissible under the Act of 1973 and its probative value is to be weighed in light of other facts and circumstances. Thus the hearsay evidence cannot be excluded straight way. The hearsay evidence of P.W.2 so far it relates to charge no.1 appears to have been corroborated by some unimpeached relevant facts and circumstances. Under section 19(1) of the Act of 1973 the tribunal may admit any evidence tendered before it, which it deems to have probative value. Weighing and determining the probative value of hearsay evidence lies with the discretion of the Tribunal [Rule 56(2) of the ROP].
176. Charge no.1 is based on hearsay evidence. With regard to hearsay evidence, it should be pointed out first that this is not per se inadmissible. The Tribunal has the discretion to cautiously consider this kind of evidence and, depending on the circumstances of each case together with relevant facts.
177. First, it appears that the decision on the confirmation of charges in the case of the Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui [(ICCC: Pre-trial Chamber I: 30 September 2008): Page 225 of the Final Argument Pack submitted by the defence] relates to admissibility of hearsay evidence and it was found that anonymous evidence can be used to corroborate other evidence. Anonymous hearsay does not affect the admissibility of the evidence but could affect its probative value. In the above case the matter of probative value of hearsay evidence was questioned at pre-trial stage. According to the provisions contained in the Act of 1973 and ROP it is the Tribunal’s discretion which is to weigh the probative value of hearsay evidence in light of ‘other evidence’ relating to relevant facts and circumstances.
178. Second, we have found from the decision of the ICTR Trial Chamber given in the case of the Prosecutor v. Kajelijeli [(ICTR Trial Chamber: case no. ICTR-98-44A-T 01 December 2003): Page 230 para, 45 of the Final Argument Pack submitted by the defence] as cited by the defense that “....decision as to the weight to be given to the testimony based on tests of ‘relevance, probative value and reliability.” Accordingly, the Chamber notes that evidence, which appears to be “second hand”, is not, in and of itself, inadmissible, rather it is assessed, like all other evidence, on the basis of its credibility and its relevance.”
179. That is to say hearsay evidence is to be assessed like all other evidence, on the basis of its ‘credibility’ and its ‘relevance’. In the case in hand, hearsay evidence of P.W.2 is quite relevant to the material particular of facts relating to the event of killing and involvement of the accused therewith and as such not inadmissible. Such hearsay evidence is to be weighed now in light of ‘other evidence’ relating to relevant facts and circumstances.
Afterwards, he moved to the deposition by the P.W.-10 Syed Abdul Quiyum which is at page 6 of the additional bundle. Razzaq readout from his cross-examination, “I have given statement but what I have deposed I cannot remember those now...” and then he readout another part, “Someone named Pallab was the student of Mirpur Bangla College was killed by Abdul Quader Mollah.” Razzaq then submitted, “He (P.W.-10) did not depose from whom he had heard that.” Razzaq then further readout from his (P.W.-10) cross-examination, “It is not true that I have not told to I.O. about the murder of Pallab.” Razzaq then submitted, “That means he (P.W.-10) told the fact to I.O. but it was not in his statement before the I.O. and the I.O. in his cross-examination said that P.W.-10 did not say anything to him about Pallab’s murder.”

Sinha J. commented, “That is why the tribunal has come to this conclusion. You do not need to submit all these.” 

Razzaq replied, “In that case, my submission is- P.W.-10’s statement should totally be excluded as in such cases corroborative evidence is required.” Chowdhury J. disagreed and said, “No, it is not required in this scenario.” 

Razzaq then submitted, “Tribunal itself said in the judgement that they need corroborative evidence and corroborated other evidence. Let us see what other evidences of P.W.-10 were relied by the tribunal.” He then read out paragraphs 179 and 180 of the judgement. When he finished with reading, Sinha J. asked to him to read paragraph 139 and Razzaq readout that accordingly (this is basically tribunal’s summary on P.W.-2 Syed Shahidul Huq Mama’s deposition in respect of role and association of the respondent with Biharis and some people). 

Razzaq then posed a question, “Is this the charge against me?” He then submitted, “The tribunal is not in a position to say that I (respondent) have not disclosed with Jamat-e-Islam and some other people like Akter Goonda and etc.” He then read out paragraphs 281, 164 and 196 respectively. Razzaq then submitted, “I (respondent) have been convicted under section 2. Now what the lordships did was instead of deciding the case on ‘substantive contribution’, they decided the case on the basis of ‘complicity’.”

Razzaq then referred an ICTR trial chamber case on substantive contribution. He particularly relied on paragraph 395. Chowdhury J. then asked him, “What do you mean by substantive contribution?” Razzaq replied, “Whether I have contributed to the crime or the part of the crime etc.” Chowdhury J. explained, “In our Penal Code at section 39 there is definition ‘basic contribution’ and it does not require to be present in the crime scene.”
He then moved to paragraph 212 and submitted, “there is no evidence apart from culpable association; still they discussed in paragraph 215.” He further submitted, “In the charge it was stated that he (victim) was taken to Mirpur (section) 11 and then to Mirpur (section) 12 and then he was killed. Prosecution did not explain or narrate anything. Thus it is simply fiction.” He further submitted, your lordship has long experience in the bar and the bench..you say whether such deposition is sufficient enough to convict the respondent.”

After that the CJ simply asked Razzaq, “Do you have anything else to submit in relation to this charge? Razzaq replied, “We have another evidence D.W.-4. But ICT did not believe her but they believed hearsay evidence, where D.W.-4 is the only family member.”

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