Blogger killings: Justifying the unjustifiable

A Facebook status published today of someone whom I do not know (and shall not name) sought to justify the killings yesterday of Dipan and the attack on Tutul, both publishers of Avijit Roy. The status has since been removed, so I paraphrase :

"I have no sympathy for those bloggers that have been killed. The Gonojagaron Mancho have brought it upon themselves by calling for the hanging of people, despite an unfair trial process. They deserve what they get."

This is so wrong, on many levels. There is simply no way that one can justify the 'blogger killings' on the basis that the people killed may have been part of a political demand that those convicted of crimes before the International Crimes Tribunal should be hung.

The men who killed the 'bloggers' - or their publisher - simply decided on their own that these people had committed some sort of crime for which they deserved to be killed. And then they killed them. That is entirely beyond the law and judicial system. There is only one word for it. And that is murder.

Yes, the Gonojagaron Mancho have called and are calling for hanging of those convicted of war crimes - but they do so only at the end of a judicial process in which charges are laid against the accused; where the charges for which the men are accused allow for the death penalty; after a trial has taken place in which witnesses are summoned; and a conviction is given by the court and an appeal process is permitted.

Whatever the inadequacies of the process - and in my view there are many - the Mancho's calling for the hanging of those who have committed these crimes (though in my view misplaced) is a million miles away from killing, or supporting the killing of bloggers, who have not committed any crime, have not been subject to any judicial process, and have not been charged for an offense that allows the death penalty.

It may be the case that calling for hanging following a perceived unfair process, has allowed Islamic extremists and others to think that they are then justified in murdering those who support the calling for the hanging (as indeed this Facebook status shows). But any attempt to link the two is totally unjustified.

The Facebook status - which I guess reflects the views of a considerable section of those who are critical of the International Crimes Tribunal - is very revealing.

It shows clearly that these people - pro-Jamaati, in the main, I imagine - are only critical of the International Crimes Tribunal because they are supporters of the accused who are to be subject to the death penalty - and not because they are interested in due process in any principled way.

These people are not concerned about fair trials, or rights of the accused as such - in fact they are  quite happy for the bloggers to be killed without any judicial process at all. If their patrons or parties came back to power in Bangladesh, I would put my bottom dollar that they would lose any interest in due process and would be happy to see the government prosecute unfairly those people who are their political enemies. And indeed put them to death.

Of course, this is not to say that the criticisms of the tribunal, held by these same supporters of the accused, are not correct. Only that they are deploying the arguments opportunistically, and they would be quite happy with the current ICT process if their political enemies were the accused.

Did the European Parliament get it right?

The European Parliament passed a resolution on Thursday 16 January 2014, which was wide-ranging. The full text is set out below. Underneath the text, I have set out a number of comments. 

The European Parliament,
– having regard to its resolutions on Bangladesh, in particular those of 21 November 2013 on Bangladesh: human rights and forthcoming elections(1) , of 23 May 2013 on labour conditions and health and safety standards following the recent factory fires and building collapse in Bangladesh(2) , of 14 March 2013 on the situation in Bangladesh(3) , and of 17 January 2013 on recent casualties in textile factory fires, notably in Bangladesh(4) ,
– having regard to the Declaration by High Representative Catherine Ashton on behalf of the European Union on the Legislative Elections in Bangladesh of 9 January 2014 and the Statement by High Representative Catherine Ashton on the preparation for general elections in Bangladesh of 30 November 2013,

Legitimacy of govt after boycotted polls likely to be ‘questioned’: Chabot

This was originally published in New Age on 13 November 2013

Legitimacy of govt after boycotted polls likely to be ‘questioned’: Chabot 

David Bergman  

The chair of the Foreign Affairs Sub-Committee on Asia and the Pacific in the United States House of Representatives has told New Age that the legitimacy of an Awami League government would likely be questioned if it wins an election without the main opposition party taking part.
Steve Chabot, a US congressman for 17 years was speaking exclusively to New Age in a one-on-one interview last week at the end of the first day of his two-day trip to Bangladesh where he met the prime minister, Sheikh Hasina, and the opposition leader, Khaleda Zia, as well as other government and opposition leaders.

Politics and the Molla execution

Putting to one side, for one moment, the appropriateness or otherwise of the decision made by the appellate division to impose a death sentence on Quader Molla (also see this), it is interesting to consider the political context in which the government now has to decide when or if to carry out the execution.

There are two opinion polls this year that provide some information about the mood of the country in relation to the trials and demands for execution.

The first was undertaken by Org-Quest Research Limited who were commissioned by the country's number one Bengali language newspaper, Prothom Alo. It was never published - apparently because it was considered too sensitive.

3000 people were interviewed by phone between 8-15 Feb 2013 on issues relating to the conviction and sentence of imprisonment of the Jamaat-e-Islami leader Quader Molla for war crimes committed during the 1971 war. The questioning took place in the days immediately after the verdict and when the Shahbag movement - which was vehemently seeking the death penalty - was it its height. The estimated margin of error in this poll was said to be +/- 1.7 percent.

Amongst respondents who knew about the ruling (86% of the total) were asked whether they were satisfied with the ruling 59% said that they were dissatisfied and 40 percent said they were satisfied. 1 percent refused to answer.

When the unsatisfied respondents were asked what should have been the fair verdict, the 43% favored the death penalty, 9% expected acquittal and 6% thought anything less than life imprisonment would have been the fair verdict.

In summary, this means that 43% supported the demand that Molla be given the death penalty and 55% were against it, (supporting either life imprisonment, a shorter level of imprisonment or acquittal). 2% had refused to answer.

When the results were considered in terms of whether they lives - 63% of urban residents compared with 37 percent of those living in rural areas supported the sentence of hanging.

This would suggest that there a death penalty decision is not widely popular in Bangladesh, though a significant minority do support it

The second opinion poll was undertaken by Nielsen/Democracy International in April 2013 - subsequent not only to Molla's verdict and the pro-hanging Shahbag protests but also the ICT ruling imposing a death penalty against Sayedee.

This poll involved the face to face interviewing of 2510 randomly selected people throughout Bangladesh, and had margin of error of +/- 2%.

Of those who knew about the tribunal (92%) 86% wanted the trials to proceed.

When those who knew about the tribunals were asked about the fairness of the process, 63% thought that the trials were unfair or very unfair and 31% though they were fair.

Those who thought that the trials were not fair divided into 41% who stated that were simply 'unfair' and 22% who that the trials were ‘very’ unfair.

The poll also found that only 25% of people thought that BNP supported 'war criminals'

In relation to Shahbag, the poll found that 66 per cent of those questioned knew about the Shahbagh protests and out of this number, 69 per cent thought that the ‘reason’ why the protesters were at Shahbagh was to ‘demand justice/capital punishment.’

However, when those voters who knew about the protests were asked about the extent to which ‘most of your friends and family’ supported or were against the movement, the poll found that only 31 per cent supported/highly supported it (of which 13 per cent ‘highly’ supported it) and that 51 per cent thought that their friends and family were against/highly against it (21 per cent being ‘highly’ against).

This second poll therefore suggests that there is a level of deep ambivalence in Bangladesh towards the war crimes trials; whilst the support the idea of trials, most people see the actual proceedings as unfair - though the polls do not examine exactly what people mean by 'unfair (it could mean unfair to the prosecutors, not just unfair to the accused!). Whilst the majority opinion against Shahbag might not only be a vote against Shahbag's demand for the death penalty, it is likely that it does reflect at least to some extent opposition to the death penalty since that was the protestors main demand.

So where does that leave us with the issue of the execution of Molla. 

Taking these polls into account, my view is that Molla's execution will not be a big vote winner for the AL, and amongst certain sections of society in Bangladesh could well turn people off the party (though these people are probably not sympathetic to the party already)

If the government does try to execute Molla in haste, for example without providing a right to review the decision, this could certainly increase the perception of unfairness, that might filter through to opposition to the governing party.

At the same time, Molla's execution will be popular amongst the AL party's base, and a failure to carry out the execution (unless of course something happened clearly beyond the party's control of course) would create significant problems for the party, with the party leadership coming under significant criticism from within.

Probably, looking at the issue in totally political terms, for the Awami League, failure to execute Molla would probably do them more harm than good.

The opposition BNP is being extremely quiet about the tribunals at present - it has not criticised the death penalty as such, but has focused on urging the government to allow the defence to undertake a review by the appellate division. It seems there is little political mileage in the BNP taking up the issue one way or the other.

What HRW, Amnesty and ICJ say about Quader Molla death sentence

Here are the views of two international human rights organizations, and one international jurist organization to the appellate division decision on Quader Mollah which sentenced him on 17 September 2013 to death (see here for details of offense and here for what might happen now).

Note: emphasis added

Human Rights Watch (please note that after providing this statement, HRW issued a slightly amended more formal statement, which can be accessed here)

The verdict handed down by the Appellate Division of the Supreme Court of Bangladesh in the war crimes trial against Abdul Qader Mollah, which reversed a prior life imprisonment for murder as a crime against humanity charge and sentenced him to death, is based on the retroactive application of amended legislation.  

When the Mollah trial judgment was handed down on February 5, sentencing him to life in prison, there was no provision in the International Crimes Tribunal (ICT) Act allowing the prosecution to appeal against an acquittal. In the face of large public protests demanding the death penalty, the cabinet proposed amendments to the ICT Act, which parliament duly passed on February 17. These amendments allowed the prosecution to appeal the sentence, and decreased the time for an appeal to be completed. 

The amendments are a clear violation of the International Covenant on Civil and Political Rights (ICCPR), to which Bangladesh is a state party. Article 14 of the ICCPR states that “no one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.” 

The prohibition on retroactive penalties is one of the fundamental protections of the rights of the accused in both international law, and for that matter in Bangladeshi law as well. Without this protection, governments would simply keep amending laws whenever faced with a verdict they didn’t like. 

An amendment to the Bangladeshi constitution which strips those accused of war crimes of certain fundamental rights should be repealed to ensure equality and due process of law. 

Human Rights Watch noted that it is precisely because these accused are considered beyond the ambit of constitutional protection that allows the Attorney General, speaking after the verdict, to declare that a constitutional review of the death sentence was not applicable to Mollah and that the case is now over. The only possibility, the Attorney General said, was for Mollah to apply for presidential clemency.

Human Rights Watch has long called for justice for the 1971 atrocities. People in Bangladesh have already waited far too long for justice. But justice depends on fair trials and due process of law. The application of retroactive legislation to hand someone the death penalty calls into question the validity of these trials. One of the goals of the trials was to show that justice had been done, but the conduct of the government risks the further polarization of society and making people like Mollah into martyrs. We hope that the courts and government will think and make fair trials, not convictions, their first priority.

Human Rights Watch is opposed to the death penalty in all circumstances an irreversible, cruel and degrading punishment.

Instead of giving in to public pressure, the government must now do the right thing and seize this moment to join the international community in doing away with this barbaric practice.

Amnesty International: 

Death sentence without right of judicial appeal defies human rights law

Bangladesh should immediately commute the death sentence of Abdul Quader Mollah, Amnesty International said after the Supreme Court increased his sentence from life imprisonment to death following an appeal by the government.

Mollah, a senior leader in the opposition Jamaat-e-Islami party was first sentenced to life imprisonment for crimes against humanity by the Bangladeshi International Crimes Tribunal (ICT) in February 2013. The tribunal was set up in 2010 to try those accused of committing war crimes during Bangladesh’s 1971 independence war. 

“We are very concerned about the Supreme Court’s ruling and the apparent relentless effort by the government to ensure that Mollah could be put to death. We urge Bangladeshi authorities to commute his death sentence, and to impose a moratorium on executions as a first step towards abolishing the death penalty,” said Abbas Faiz, Amnesty International’s Bangladesh Researcher. 

The death sentence was handed down by the highest court in the country, giving Mollah no chance to appeal. The imposition of the death sentence without the possibility of appeal is incompatible with Bangladesh’s obligations under international human rights law. 

“Imposing a death sentence without the right of judicial appeal defies human rights law. There is no question that the victims of Bangladesh’s independence war deserve justice, but one human rights violation does not cancel out another. Executions are a symptom of a culture of violence rather than a solution to it,” said Faiz. 

“This is the first known case of a prisoner sentenced to death directly by the highest court in Bangladesh. It is also the first known death sentence in Bangladesh with no right of appeal.” 

Amnesty International opposes the death penalty in all cases without exception, regardless of the nature or circumstances of the crime; guilt, innocence or other characteristics of the individual; or the method used by the state to carry out the execution. 

Background
The Attorney General and the Law Minister have said there would be no possibility of a review of the death sentence by the Supreme Court.

Multiple appeals against death sentences, as well as a final review of the highest court ruling on them, are available to prisoners sentenced to death by other courts in Bangladesh.
Even prisoners sentenced by the ICT have the right to a judicial appeal. 

The death sentence imposed on Abdul Quader Mollah by the highest court in Bangladesh brings to five the number of death sentences linked to ICT trials. The other four - Abul Kalam Azad , Delwar Hossain Sayedee, Muhammad Kamaruzzaman and Ali Ahsan Mujaheed – were sentenced to death by the ICT earlier this year. 

Commuting Mollah’s death sentence will be in line with the trend set by the International Criminal Court and all other international criminal courts established since 1993. They have all excluded the death penalty as a sentence for the most horrific crimes: crimes against humanity, genocide and war crimes.

International Commission of Jurists: 

Bangladesh: Abdul Quader Mollah death sentence violates international law

The ICJ said that the death sentence handed down today by Bangladesh’s Supreme Court against Abdul Quader Mollah is incompatible with international principles of fair trial.
If carried out, the sentence would violate his right to life and freedom from cruel, inhuman, or degrading punishment. 

On 17 September 2013, the Appellate Division of the Supreme Court of Bangladesh upheld the prosecution’s appeal to impose the death sentence on Abdul Quader Mollah (photo), the assistant Secretary-General of Jamaat-I-Islami. 

Abdul Quader Mollah had received a life sentence on February 5, when the International Crimes Tribunal (ICT) convicted him on five counts, including murder and rape. 

“The prosecution’s appeal to impose the death sentence on Abdul Quader Mollah was based on a law that was not in force when he was first convicted, and applying that law retroactively, especially for the death penalty, violates international law,” said Sam Zarifi, ICJ’s Asia-Pacific Director. 

On 17 February 2013, Parliament passed an amendment to the International Criminal (Tribunals) Act 1973 to enable prosecutors to appeal a life sentence and seek the death penalty. 

Before this amendment, the prosecution was only allowed to appeal if the accused was acquitted. 

The ICJ says the retrospective application of the amendment in Abdul Quader Mollah’s case is incompatible with Bangladesh’s obligations under the International Covenant on Civil and Political Rights (ICCPR), including Article 15, which prohibits the imposition of a heavier penalty than provided for at the time the criminal offence was committed. 

“Judgments such as these highlight the serious problems with the war crimes tribunal that undermine its legitimacy,” Zarifi further said. “The wounds of war can only be healed through a fair and transparent trial process that meets international standards of fair trial and due process of law.” 

“It is essential that those responsible for committing atrocities during the Bangladeshi war of liberation are prosecuted and brought to justice,” Zarifi added. “But the death penalty perpetuates the cycle of violence and is a perversion of justice, and all the more so when it is imposed in violation of due process.” 

The ICJ considers the death penalty in all cases to constitute a violation of the right to life and the right not to be subjected to cruel, inhuman or degrading punishment.
The ICJ calls on Bangladesh to join the great majority of States around the world in rejecting the use of the death penalty. 

To that end, Bangladesh should impose a moratorium on the practice and take steps towards its abolition, as prescribed by repeated United Nations General Assembly Resolutions.

What happens now with Quader Molla?

What happens now that the appellate division has imposed the death sentence on Abdul Quader Mollah  in relation to one offence. How quickly can the executive carry out the order of the court, if it so wishes?

1. Certified copy
It seems clear that nothing can happen before a certified copy of the order is produced by the Appellate division. (In the court room today the chief justice simply stated the conclusions of the appeals, and did not provide any reasons.)

So either a decision - with reasoning - has to be written or if it has already been written, a'certified' copy has to be produced.

Then, according to the Attorney General the certified copy has to be sent from the Appellate Division to the International Crimes Tribunal which he said was 'the executing court'. The Tribunal will then issue a 'warrant of death' which will be given to the jail authorities, which is responsible for carrying out the hanging.

It should be noted that courts in Bangladesh can take a very significant time to complete their written judgments - many months, sometimes more than a year. It is upto the five judges to decide whether the decision will be completed quickly or not. It is of course also possible, I imagine, that the dissenting judge could delay the certification process

2. Review petition
Once a certified copy has been written - there is the question of a review petition. On this the defence lawyers and the attorny general/law minister have different position.

According to the defence, Article 105 provides Molla the right to seek a review of the appellate decision. This Article states:

The Appellate Division shall have power, subject to the provisions of any Act of Parliament and of any rules made by that division to review any judgment pronounced or order made by it.

Order 26 of the Appellate Division rules sets out the procedure for this.

1. Subject to the law and the practice of the Court, the Court may, either of its own motion or on the application of a party to a proceeding, review its judgment or order in a Civil proceeding on grounds similar to those mentioned in Order XL VII, rule 1 of the 'Code of Civil Procedure and in a Criminal proceeding on the ground of an error apparent onthe face of the record.

2. Applications for review shall be filed in the Registry within thirty days after pronouncement of the judgment, or, as the case may be, the making of the order, which is sought to be reviewed. The applicant shall, after filing the application {or review, forthwith give notice thereof to the other party and endorse a copy of such notice to the Registry.

3. Every application for review shall be accompanied by a certified copy of the judgment or order complained of and when the application proceeds on the ground of a discovery of fresh evidence certified copies of the documents, if any relied upon, shall be annexed to the application, together with an affidavit setting forth the circumstances under which such discovery has been made.

4. No such application shall be entertained unless it is signed by a Senior Advocate who, in this behalf: shall not be governed by the restrictions contained in clause 2 of the First Schedule to these rules.

5. The Senior Advocate signing the application shall specify in brief the points upon which the prayer for review is based, and shall add a certificate to the effect, that consistently with the law and practice of the Court, a review would be justifiable in the case. The certificate shall be in the form of a reasoned opinion.

6. Except with the special leave of the Court, no application for review shaH be drawn by any Advocate other than the Advocate who appeared at the hearing of the case in which the judgment or order, sought to be reviewed, was made. Such Advocate shall, unless his presence has been dispensed with by the Court, be present at the hearing of the application for review.

7. As far as practicable the application for review shall be posted before the aame Bench that delivered the judgment or order sought to be reviewed.

8.. After the final disposal of the first application for review no subsequent application for review shall lie to the Court and consequently shall not be entertained by the Registry.

9. No application for review shall be entertained unless party seeking review furnishes a cash security of [Tk.lO,OOO], which shall be liable to be forfeited [if the review petition] is dismissed.

So any review would need to be made, "within thirty days after pronouncement of the judgment, or, as the case may be, the making of the order, which is sought to be reviewed." It goes onto say, "Every application for review shall be accompanied by a certified copy of the judgment."

The defence argues that this means that they have 30 days to file a review application after they have got a certified copy of the order. The review has to be very narrowly drawn - an 'error apparent on the face of the record' has to be shown. The court can either refuse to hear such a petition, or they can agrre to hear some arguments and then make a decision.

The Attorney General however argues that there is no such right to a review, pointing out that there is no such provision in the International Crimes (Tribunal) Act 1973 for such a review. He stated to me in an interview:

"Before enactment of this law the constitution was amended, and thereafter the [International Crimes (Tribunal) Act] is a special law for a special purpose and in this law there is provision for trial by tribunal and there is a forum for appeal. Since there is nothing in law about any review according to me there is no scope for review."

Another AG official pointed out that Article 105 gives the right, 'subject to the provisions of any Act of Parliament', and because of the status of the ICT Act - with its exemptions from constitutional provisions through Article 47 of the constitution - the section does not apply

When I asked Abdur Razzaq, the chief defence lawyer about the view held by the attorney general - a view which also appears to be held by the Law Minister - he said the following:

I think the Attorney General is incorrect. We certainly have right both under Intenratoinal Crimes Tribunal Act and under constitution to file a review The appeal was heard both under the constitution and under ICT Act, and constitution clearly says that right to review and more so in this case as this is first court giving the death penalty. Normally a death penalty will go before both the high court and appellate division - so at least there must be a right to review

He said that he was particularly concerned that this was the AG's view as he "is the person who is advising the govt" 

"We may have to go to appellate division to seek a stay of application of the death penalty until an application is dealt with."

3. Clemency
Both defence and the state however argue that Molla could seek clemency under Article 49 of the constitution. This states:

"The President shall have power to grant pardons, reprieves and respites and to remit, suspend or commute any sentence passed by any court, tribunal or other authority."

The Attorney General stated to me that:

"In our country after judgement, death penalty cannot be done in a few days. There is a procedure. Accused has to be informed. He has right to seek clemency.

This however is a private matter for the Molla and his family, and according to the law minister (see article above) would require Molla having to admit his guilt (though it is not clear what is the basis of him saying that.)

It is not clear whether Mollah needs to have a copy of the certified order of the judgement or not. One assumes that would be necessary.

So where does that leave us? 
In some confusion I think
- first there is a question of how quickly the appellate division decides to issue a certified copy. That seems to be crucial to whether or not hanging could possibly happen in the next few months or not.
- once that is done, and time has been given for an application to seek clemency (though it is not clear how much time would need to be given), it is possible (assuming clemency is not given) under the government's interpretation of Article 105 of the constitution for hanging to take place at any point in time.
- however, the above depends on what the appellate division's view of whether a review application is allowed, and whether or not they agree (assuming the defence do lodge such an application) to give a stay order on the execution of the court's judgement until a review application has been lodged and decided upon by the court.
- even if the appellate division does accept that a review application can be lodged by the defence, it is very unlikely that it will be successful, since it is the same judges who gave the judgement who will make a decision on the review application.

Mollah death penalty; details of the charge

Also see: What happens now to Quader Molla?

------------------

The appellate division today (17 September 2013)  dismissed appeals made by Quader Molla's lawyers against his conviction on five counts of crimes against humanity. Instead the court upheld unanimously that his acquittal on charge no 4 should be reversed and should stand as a conviction, and most significantly that, by a majority, the sentence on charge no 6 (the murder of a family), should be changed from life imprisonment to a death penalty.

No judgment was read out. A written judgement will be made available in due course.

Below is an extract from the original ICT judgment relating to charge no 6. It should be noted that the only evidence is the testimony of a woman, a member of the family that was murdered 40 years ago, and who was a young girl at the time the murders took place. There was no other corroborating evidence.

At the end of the judgment extract is an extract from the defence arguments made at the time of trial arguing that the women's testimony could not be relied upon

You can read the rest of the judgement and other details of the trial proceedings here

Adjudication of Charge No.06 [Killing of Hazrat Ali and his family and Rape]335. Summary Charge No.06: During the period of War of Liberation , on 26.3.1971 at about 06:00 pm the accused Abdul Quader Molla one of leaders of Islami Chatra Sangha and as well as prominent member of Al-Badar or member of group of individuals being accompanied by some biharis and Pakistani army went to the house of Hajrat Ali at 21, Kalapani Lane No. 5 at Mirpur Section-12 and entering inside the house forcibly, with intent to kill Bangalee civilians, his accomplices under his leadership and on his order killed Hazrat Ali by gun fire, his wife Amina was gunned down and then slaughtered to death, their two minor daughters named Khatija and Tahmina were also slaughtered to death, their son Babu aged 02 years was also killed by dashing him to the ground violently. During the same transaction of the attack 12 accomplices of the accused committed gang rape upon a minor Amela aged 11 years but another minor daughter Momena who remained into hiding, on seeing the atrocious acts, eventually escaped herself from the clutches of the perpetrators. By such acts and conduct the accused had actively participated, facilitated, aided and substantially contributed to the attack directed upon the unarmed civilians, causing commission of the horrific murders and rape by launching planned attack directing the non-combatant civilians and thereby committed the offence of ‘murder’ as ‘crime against humanity', ‘rape’ as ‘crime against humanity’, 'aiding and abetting the commission of such crimes' or in the alternative the offence of 'complicity in committing such offences' as mentioned in section 3(2)(a)(g)(h) of the International Crimes(Tribunals) Act,1973 which are punishable under section 20(2) read with section 3(1) of the Act. 

Witness336. Prosecution adduced and examined only one witness in support of this charge. It examined Momena Begum as P.W.3. She is the only survived member of victim family and daughter of Hazrat Ali. She witnessed the horrendous event of killing and rape. The event happened inside their house and thus naturally none else had occasion to see the event committed. P.W.3 Momena Begum testified in camera as permitted by the Tribunal. She made heartrending narration of the atrocious event that she witnessed with choked voice. At the relevant time she was 13 years old and newly wedded. 

Discussion of Evidence337. P.W.3 Momena Begum has testified that she is the only survived member of their family. The event took place on 26th March 1971. According to P.W.3 at the relevant time they had been living in the house no. 21 of no. 5 Kalapani lane of Mirpur 12. It remains unshaken and undisputed too. 

338. P.W.3 while narrating the incident on witness box stated that on 26th March 1971 just immediate before the dusk her father hastily came back to home and was telling frightened that Qauder Molla would kill him. Aktar goonda and his Bihari accomplices and Pakistani army were chasing her father to kill him. Her father entering inside house closed the door and at that time her parents and brothers and sisters were inside the room. On being asked by her father she and her sister Amena kept themselves in hiding under the cot. She heard that Quader Molla and biharis coming in front of the door started telling- “son of a bitch, open the door, otherwise we will throw bomb”. They threw a bomb as her father did not open the door and thereafter, her mother having a ‘dao’ in hand opened the door and instantly they gunned down her mother. Her father attempted to hold her mother and then accused Quader Molla holding collar of wearing shirt of her father was telling- “ son of a pig, would you not do now Awami league? Would you not follow Bangabandhu? Would you not utter the slogan ‘Joy Bangla’?” Then her father folded hands begged Quader Molla and Aktar goonda to spare him. But the accused Abdul Quader Molla dragged her father outside the room. His accomplices slaughtered her mother with a ‘dao’, also slaughtered her sisters Khodeja and Taslima with a ‘chapati’ (at this stage, P.W.3 on dock started crying shedding tears). 

339. P.W.3 further stated, by memorizing the horrendous event that her two years old brother Babu started crying but he was also killed by dashing him to the ground violently. On hearing cry of Babu, her sister Amena started howling and then they dragged Amena from under the cot and tortured her by ragging her wearing clothes. Amena had raised cry to save her and at a stage her cry came to an end. Thereafter, they also had dragged her out from under the cot by causing injury with some sharpen object and then she raised cry and lost her sense. When she regained her sense she felt severe pain at abdomen and she could not walk and found her wearing pant in ragged condition. She somehow, there from, came to one house at ‘Fakirbari’ where its inmates found her in bleeding condition wearing ragged pant and then they made arrangement of her treatment by calling a doctor on the following day and then on being informed by them her father-in-law came there and brought her to his house where she was given necessary treatment. 

340. P.W.3 further stated that in 1971 she could not forget the scene of killing of her parents, brother and sisters which she herself witnessed and being traumatized she was almost mentally imbalanced and now she is in fact dead although still alive. At the time of identifying the accused on dock P.W.3 carrying immense heartache stated that she wanted to ask the accused—‘where is my father’? 

341. The above narration as to the commission of horrific event could not be dislodged by the defence in any manner. Rather, P.W.3, on cross- examination has re-affirmed that at the time of event they all were inside one room of their house. She could not see who killed her father but she, remaining in hiding under a cot, saw Quader Molla dragging her father out. 

342. P.W.3 , in cross-examination, in reply to question elicited to her by defence stated that the Bangalee person accompanying the Biharis and Pakistani army who was speaking in Bangla and dragged her father out holding his shirt’s collar was Quader Molla and she saw it remaining in hiding under the cot. Thus, the presence of accused Abdul Qauder Molla at the crime site has been re-affirmed by P.W.3. 

343. On cross-examination, P.W.3 has reaffirmed the horrific incident of killing and torture. She stated that her mother was slaughtered inside the room when her father was forcibly dragged out and she did not see her father’s killing. Thereafter, Biharis slaughtered her sisters Khodeja and Taslima inside the room. The Pakistani army and Biharis killed her brother by dashing him to the ground violently. They dragged out her sister Amena and caused successive torture. 

344. As regards father’s killing P.W.3 stated in cross-examination that after independence Akkas member informed her that Quader Molla had killed her father. She also stated that gang of 10-12 persons attacked their house and of them only one person wearing Pajama-Panjabi who was speaking in Bangla was Quader Molla. 

Evaluation of Evidence and Finding345. Defence does not deny an orgy of atrocities that took place on the date time and in the manner. But it refutes the charge that the accused was at the very centre of the web of these crimes as have been brought in charge number 6. It has been argued by the learned defence counsel that P.W.3 Momena Begum is not the daughter of victim Hazrat Ali Laskar. Prosecution has failed to bring any corroborative evidence to substantiate the charge. There has been no evidence to show that accused Abdul Quader Molla has overt act to the commission of alleged crimes. 

346. First, the argument that P.W.3 Momena Begum is not a daughter of victim Hazrat Ali Laskar is deprecated one. Without any evidence or putting suggestion to P.W.3 on the basis of any tangible evidence no such argument stands lawful and correct. Besides, on cross-examination, in reply to question put to her, P.W.3 stated that her father was running a tailoring shop at Mirpur 01 in front of Majar and she also used to work there prior to her marriage. 

347. It appears that the charge does not allege that the accused himself personally committed the crime of murder of inmates of P.W.3. But ‘murder’ as a crime against humanity does not require the prosecution to establish that the accused personally committed the killing. The crimes alleged are not isolated crimes. We are not agreed with the argument advanced by the learned defence counsel Mr. Abdus Sobhan Tarafder that the accused cannot be held responsible for the offence of murder as listed in charge no.6 as the prosecution has failed to establish the overt act of the accused. The case in hand involves the offences enumerated in the Act of 1973 which are also considered as system crimes committed in violation of customary international law. Overt act of accused Abdul Quader Molla is immaterial as he has not been charged for committing any isolated crime. He is alleged to have accompanied the gang of perpetrators to the crime site. Jurisprudence evolved suggests that even a single act on part of accused may lawfully be characterized as the offence of crimes against humanity. 

348. In the case in hand, we are just to adjudicate how the accused incurs responsibility for the accomplishment of the crime. What of his conducts or acts has made him responsible? It is to be noted that even a single or limited number of acts on the accused’s part would qualify an offence as crime against humanity. In addition, in certain circumstances, a single act of the accused has comprised a crime against humanity when it occurred within the necessary context. 

349. It has been proved beyond reasonable doubt that P.W.3 had witnessed the incident of killing her parents, sisters and minor brother committed at their own house. Miraculously she escaped. She is a traumatized witness and a survived victim. At the time of incident she was a girl of 13 years of age. One can say that how she can memorize the incident long 41 years after the incident took place? It is true that with the passage of time human memory becomes faded. But it is also the reality that human memory is quite capable of reserving some significant moment or incident in the hard disc of his or her memory which is considered as long term memory (LTM) and it is never erased from human memory.
350. We have found that the following version of P.W.3 remains unshaken: “the accused Quader Molla holding collar of wearing shirt of her father was telling- “son of a pig, would you do now Awami league? Would you not follow Bangabandhu? Would you not utter the slogan ‘Joi Bangla’?” Then her father folded hands begged Quader Molla and Aktar goonda (terrorist) to leave him. But the accused Abdul Quader Molla dragged her father outside the room and since then he could not be traced. His accomplices slaughtered her mother with a ‘dao’; slaughtered her sisters Khodeja and Taslima with a ‘chapati’.” 

351. It is need less to say that the horrific event that the P.W.3 herself experienced is inevitably still retained in her memory. There has been no earthly reason to disbelieve this witness. Rather, she seems to be a natural live witness who sustained severe mental trauma experiencing the horrific killing of her parents, sisters and minor brother in front of herself. 

352. We do not find any reason to view that P.W.3 had no reason or scope to know the accused Quader Molla, particularly when statement of P.W.3 demonstrates that according to her father, Abdul Quader Molla was chasing him and her father begged life from Abdul Quader Molla and Aktar goonda. It is found that on the following day of ‘crack down’ in Dhaka the incident of brutal killing of parents and other inmates of P.W.3 Momena took place, in violation of customary international law. 

353. Already it has been found that the crimes for which the accused has been charged were not isolated in pattern and the same were the outcome of organized and systematic attack directed against the civilian population. Now, let us find what were the conducts on part of the accused prior to the commission of the crime and whether he accompanied the principal perpetrators who were local notorious Bihari and hooligans. 

354. The incident of killing of parents, two sisters and one minor brother on the day time and in the manner remains unshaken. It is a fact of common knowledge that Mirpur is a locality of the then Dhaka city having mostly bihari population and accused Abdul Quader Molla used to maintain close and culpable affiliation with the local bihari goonda and pro-Pakistani people and already we have found from evidence of P.W.2 that Abdul Quader Molla was closely associated with the Jamat E Islami (JEI) politics and was a potential leader of ICS. Admittedly, at the relevant time he was a leader of ICS of Shahidullah Hall, Dhaka University. 

355. Evidence of P.W.3 amply demonstrates that Abdul Quader Molla by accompanying the gang consisting of Biharis, local Aktar goonda and Pakistani army to the crime site, in other words, substantially facilitated and aided the commission of the horrendous killings. Why the accused, being a Bangalee civilian accompanied the local Bihari hooligans? Why he used to maintain culpable association with them even since prior to 25 march 1971? 

356. It is to be noted that now it is settled that even mere presence at the scene of the crime may, under certain circumstances, be sufficient to qualify as complicity. From the evidence of P.W. 3 , a live witness, it is found that the accused by his presence in the crime site and by his culpable acts substantially encouraged and facilitated the main perpetrators in committing the crime and also he shared the intent similar to that of the main perpetrators and thus obviously he knew the consequence of his acts which provided moral support and assistance to the principal perpetrators. Therefore, the accused cannot be relieved from criminal responsibility. In the case of Prosecutor Vs. Charles Ghankay Taylor : Trial Chamber II SCSL: Judgment 26 April 2012 Paragraph 166 it has been observed that- “The essential mental element required for aiding and abetting is that the accused knew that his acts would assist the commission of the crime by the perpetrator or that he was aware of the substantial likelihood that his acts would assist the commission of a crime by the perpetrator. In cases of specific intent crimes, such as acts of terrorism, the accused must also be aware of the specific intent of the perpetrator.” 

357. Acts and conduct of accused Abdul Quader Molla at the crime site adequately suggest inferring his intent and knowledge. It is proved that he at the launch of the event dragged Hazrat Ali Laskar out of his house and before it the gang gunned down his wife. It is patent that the accused was sufficiently aware of likelihood that his acts would assist the principals in committing crimes. Thus, the accused is found to have actively and substantially encouraged and abetted the gang of perpetrators in committing the crime of killing of family inmates of Hazrat Ali Laskar. 

358. The Tribunal notes that accused Abdul Quader Molla had physically participated in the attack targeting the father and family members of the P.W.3 as her father belonged to Awami League politics and was a pro-liberation civilian. Testimony of P.W3 demonstrates evidently that the accused, by his acts of ‘accompanying’ the gang of Bihari and local Aktar goonda and also by an act of forcibly dragging Hazrat Ali Laskar out of house, Abdul Quader Molla’s presence in the crime site made him criminally linked with the commission of the offence of killing of Bangalee civilians. Thus, it is lawfully presumed that the accused had actus reus in providing moral support and aid to the commission of offence. The actus reus of abetting requires assistance, encouragement or moral support which has a substantial effect on the perpetration of the crimes. 

359. Now the question has been raised by the defence that the principal offenders have not been identified and brought to the process of justice and thus the accused cannot be held responsible as aider and abettor. It has been held by the Appeal Chamber of ICTY, in the case of Kristic that – “A defendant may be convicted for having aided and abetted a crime which requires specific intent even where the principal perpetrators have not been tried or identified ( April 19, 2004 para 143 of the judgement) .” 

360. No person of normal human prudence will come to a conclusion that at the time of incident of part of systematic attack, the accused who accompanied the principal perpetrators had a different or innocent intent. Rather, the evidence of P.W.3 demonstrates that the accused and the principals made the attack with common intent to accomplish their explicit and similar intent of killing. 

361. Mr. Abdur Razzak the learned senior counsel for defence argued by citing the decision of Appeal Chamber: ICTR in the case of Sylvetre Gacumbitsh [Case No. ICTR-2001-64-A] that according to causation standard for aiding and abetting that the acts must have a ‘substantial effect’ on the commission of the crime. The learned counsel also drew attention to the following paragraph [Page-199-Para 688 of Prosecutor v. DU[KO TADI] ICTY Trial Chamber: Case No. IT-94-I-]: “The ILC Draft Code draws on these cases from the Nuremberg war crimes trials and other customary law, and concludes that an accused may be found culpable if it is proved that he “intentionally commits such a crime” or, inter alia, if he knowingly aids, abets or otherwise assists, directly and substantially, in the commission of such a crime.“ 

362. Presence of an accused alone in the crime site may not always be sufficient to infer his contribution and assistance of the accused in the commission of crime committed by the principals. But we have found too in the case of Prosecutor v. Tadic [ICTY Trial Chamber: Case No. IT-94-I-T] wherein it has been observed as below: “.............However, if the presence can be shown or inferred, by circumstantial or other evidence, to be knowing and to have a direct and substantial effect on the commission of the illegal act, then it is sufficient on which to base a finding of participation and assign the criminal culpability that accompanies it .” 

363. In the case in hand, evidence of P,W.3 inescapably shows that the accused actively and knowing the consequence of his acts accompanied the gang of perpetrators to the crime site and by his illegal act of forcibly dragging Hazrat Ali Laskar out of house he substantially facilitated the commission of crimes committed by the principals. Therefore it cannot be said at all that the accused’s presence at the crime site and accompanying the principals were devoid of guilty intent. 

364. Accompanying the perpetrators while attacking the inmates of the P.W.3 is a significant indicia that the accused provided substantial assistance and moral support for accomplishment of the crime, although his acts had not actually caused the commission of the crime of killing in the crime site. In this regard, we may rely upon the decision of the Trial Chamber of ICTR in the case of Kamubanda [ January 22, 2004, para 597] which runs as below: “Such acts of assistance....... Need not have actually caused the commission of the crime by the actual perpetrator, but must have had a substantial effect on the commission of the crime by the actual perpetrator”. 

365. Thus, we find that the accused Abdul Quader Molla physically and having ‘awareness’ as to his acts participated and substantially abetted and encouraged to the commission of the crime. The manner time and pattern of conduct of the accused Abdul Quader Molla at the crime site and also prior to the commission of the crime is the best indication of his conscious option to commit a crime. Intent, coupled with affirmative action, is evidence of the highest degree of imputative responsibility. Acts on part of the accused at the crime site are thus qualified as crimes against humanity as the same formed part of attack directing the unarmed civilian population. His acts were of course culpable in nature which contributed to the commission of murder of Hazrat Ali Laskar and also to the commission of murder and rape committed in conjunction of the event at the crime site. 

366. The testimony of a single witness on a material fact does not, as a matter of law, require corroboration. In such situations, the Tribunal has carefully scrutinized the evidence of P.W.3 the live witness before relying upon it to a decisive extent. Since the horrific event was committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passerby will be witnesses. P.W.3 is the only survived member of victim family and thus her evidence cannot be brushed aside or viewed with suspicion. Besides, it is to be noted that the testimony of a single witness on a material fact does not, as a matter of law, require corroboration. The established jurisprudence is clear that corroboration is not a legal requirement for a finding to be made. “Corroboration of evidence is not necessarily required and a Chamber may rely on a single witness’ testimony as proof of a material fact. As such, a sole witness’ testimony could suffice to justify a conviction if the Chamber is convinced beyond all reasonable doubt.” [ Nchamihigo, (ICTR Trial Chamber), November 12, 2008, para. 14]. 

367. Indeed, within a single attack, there may exist a combination of the enumerated crimes, for example murder, rape etc. In view of discussion as made above and taking the settled jurisprudence into account eventually we are persuaded that the acts of accused Abdul Quader Molla , as has been testified by the P.W.3, in the course of implementation of the actual crime of killings and rape, render him criminally responsible for the commission of the crime that has been established to have taken place as a part of systematic attack and as such the accused Abdul Quader Molla is found to have incurred criminal liability under section 4(1) of the Act for the offence as mentioned in section 3(2)(a) of the Act of 1973 which are punishable under section 20(2) read with section 3(1) of the said Act.

Extract from defence closing arguments 
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Charge 6: Murder and rape as crimes against humanity
The Prosecution relies on the live testimony of PW 3 (Momena Begum), who was present during the commission of offences charged. 

The Defence calls into question the reliability of PW 3’s testimony. At the time of the alleged offence, PW 3 was a young child, clearly traumatised by the events she witnesses including the killing of her entire family and rape of her sister. This culminated in a period of insanity for three years (“I was insane for three years after…they tied me by chain”, (PW 3, Cross examination 17 July 2012). Although she admitted to being in hiding during the commission of offence, she provided a number of detailed points as abovementioned. However, PW 3 was unable to state how she was able to see or indeed recall who was present in the house at the time or furthermore, how she knew that the Accused was present. She did not describe the Accused at the time or state that she knew him prior to the offence so as to be able to recognize him. She was further unable to describe the role of the Accused in the alleged incidents. She did not state whether the Accused ordered the killings or rape, aided and abetted in the killings or rape or indeed directly perpetrated the killings. Instead she continuously referred to the generic “they” to describe the alleged perpetrators without elaborating as to whom this included. 

It is submitted that PW 3 was unable to identify the Accused as his alleged presence at the commission of offence is entirely based upon hearsay. In examination in chief, PW 3 testified “Kamal Khan who served tea to the freedom fighters told me that Quader Molla killed my parents. My father in law, Akkas Molla also told me the same” (PW 3, Examination in chief, 17 July 2012.) PW 3 thereby admitted that she did not know at the time who committed the offences and was only told at a subsequent date. This is in direct contradiction to her examination in chief wherein she sought to assert that she recognized the Accused at the time. This amounts to no more than hearsay evidence to which the relevant considerations must apply as detailed above. 

The Defence further highlights that following her recovery, PW 3 admittedly never reported the atrocities that she witnesses or named the Accused as bearing any criminal responsibility. Given the circumstances in which PW 3 would have witnessed the commission of offences and that she admittedly was told of the Accused’s alleged involvement after the fact, and in light of no further supporting evidence, it is submitted that the Prosecution has failed to prove the Accused’s guilt beyond a reasonable doubt.