Tuesday, September 17, 2013

Quader Molla appeal, day 13: Defence arguments

13 May 2013

Barrister Razzaq was present to represent Mollah instead of the chief counsel K M Hossain. He went to dais and started to make his submission.

He referred an Indian case [1941 AIR 331] and readout a paragraph from page  339. Sinha J. identified that the paragraph Mr Razzaq readout is from a dissenting opinion. Razzaq agreed and added, “Yes, my lord and I am inviting your lordships to give dissenting opinion to secure justice if necessary.” He then submitted, “ My submission is strict interpretation should be given.”

He then stated, “The first paragraph of the preamble of the ICT Act 1973 states that it is an Act to provide for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes and other crimes under international law. Now lets us see what is meant by ‘international crime’.” Sinha J. argued, “here the crimes ‘genocide’, ‘war crimes’ are expressly stated.” Razzaq argued, “Then offence murder is quite different from genocide. Further, under section 3 (2) (a) of the ICT Act 1973, there is no definition of murder.”

Sinha J. asked counsel Razzaq, “Was there any Act for Nuremberg trial?” Razzaq replied, “No, my lord.” Sinha argued, “Then why are arguing that definition of crime is required; Nuremberg did not have any Act even!” Razzaq replied, “But there was an agreement; most importantly there was customary international law and Nuremberg Tribunal agreed to follow that.”

Razzaq then submitted, “I shall show the elements of crime against humanity.” 

Now let us see what is the source of customary international law? The sources have been mentioned in the Article 38(1) of the Statute of the International Court of Justice. I am particularly relying on sub-article (b) international customs and (c) general principles of law recognised by civilized states.”

Mr Razzaq then argued, “the ICTY (1993), ICTR (1994) ICC, ECC (1999), Sierra Leone are post-Nuremberg courts/tribunals trying this kind of offence and apart from Sierra Leone, other courts/tribunals are formed long ago; Sierra Leone is the most recent one. Therefore legal principle/definitions enunciated in the earlier ones are not applicable for us.” 

In response to that, the CJ argued, “But our one is the different one. It is a domestic tribunal. You have argued that the definitions of the crimes are not described in our Act; lets see what AG argues.” 

AR replied, “Yes, my lord. For example, the definition of murder is not in our Act.” 

Sinha J. asked, “if it is recognised then is it necessary to define?” 

AR replied, “yes, my lord. I am now showing you the definition of murder under the crime against humanity. There are total 7 elements of murder under the crime against humanity. Among these 7 elements there are some elements that are not present in the definition under our Penal Code. Under the customary international law the definition is different.” 

Shamsuddin Chowdhury J. interrupted at this stage and argued, “Listen Mr Razzaq, definition of murder has been come from common law.” 

AR argued the 7 elements distinguishes ‘murder under crime against humanity’ from ‘murder under common law’.

He then submitted, “The offence committed in 1971 and the Act came into force in 1973. In this case retrospective effect has been given but that offence must be a crime under the customary international law in 1971. Here, the crime against humanity was not in our law of the land. Therefore, we need to see whether it was in the then customary international law.” He then referred article 15 of the ICCPR.

After that Mr Razzaq referred some case from the volume he provided the bench. At first, he referred ICTY case at page 7 of that volume. Then he referred another ICTY case at page 9 of the same volume; the relevant paragraph of this case was 194 at page 10 of the volume. He basically explained the objective and subjective element of the crime against humanity from these 2 cases. After that, he moved to page 11 (relevant page 12) and referred an ICTR case. The ICCPR, ACHR, ECHR (HR instrument of 3 continent) were referred by the judge in the relevant paragraph he read out. He argued, that point was accepted by the ICTB-1 in the Delwar Hossain Sayedee’s case (ref: page 17, paragraph 16)

He then again reverted back to his point ‘the element of murder’ under the crime against humanity. He submitted that, “There are among the 7 elements, there are 6 actus reaus nd 1 mens rea. And among the 7 elements some have been accepted by our tribunal. The 7 elements are as follows: (1) there is an attack which has nexus with the accused, (2) attack caused any of the offences (mentioned in s. 3 (2) (a), (3) victim must be a civilian, (4) attack must be of either nationality, racial or religious ground, (5) attack must be wide speared, (6) attack was a part of a plan, and (7) accused’s knowledge. Among these elements the first 6 are the actus rea and the last one is the mens rea.

Mr Razzaq then referred section 3 (2) (a) and pages 1 to 11 of the Nuremberg Charter. The CJ argued, “Our position is better because we have a legislation but Nuremberg did not have that.” AR replied, “We have borrowed everything from Nuremberg because we did not have an option then; there was no other example of trying war criminals apart from Nuremberg.”

Razzaq then further argued, “If the customary international law is accepted, then the judgement against Mollah will be blown away. Therefore, so far our tribunal accepted the customary international law, should be applicable.” 

Shamsuddin Chowdhury J. then asked AR to look General Pinochet judgement.

Then AR moved to the Agreement of Nuremberg by the Nuremberg Access Countries. Wahab Miah J. then asked AR to see article 6 of the agreement and quoted ”acting in the interest of the Nuremberg Access Countries.” Sinha J. asked AR to go through the preamble of the Nuremberg Agreement.

After an adjournment, Mr Razzaq went to the dais and started to make his submission regarding an application (division application under the jail code by the accused petitioner). He submitted that the division was originally granted by the tribunal but it was subsequently cancelled by the jail authority after the pronouncement of judgement against the accused petitioner. AR particularly argued, as the appeal has initiated the matter is still pending.

CJ then said, “Yes Mr AG, what is your submission regarding that?” Instead of the AG, DAG (who is the liaison official for ICT case) came to the dais and submitted, “The division was cancelled after the conviction therefore the jail authority has not done anything wrong.” 

AR argued, “It was granted by the ICT but cancelled by the Jail authority.” Mr Razzaq basically tried to argue whether the jail authority has power to cancel a division which was granted (upon application) by the ICT. Wahab J. said, “No one is wrong; the Tribunal has the power to do that; and so has the jail authority.” Finally, the CJ said that they shall give the order regarding this (division) tomorrow.

Mr Razzaq then continued his submission on the appeal of Mollah. He argued, “Legal principles of Nuremberg is applicable for us because before 1971 there was no other tribunal of this nature in the world.” He then again revert back to the element of crime issue. He argued, “To be a murder under he crime against humanity, there must be an attack” and he referred an ICTR case [Nahimana vs Prosecution (2007)] and an ICTY case [Kunarac (2002)] relevant paragraph 99 (series of acts and nexus).

After that, he further argued, “To be a murder under he crime against humanity, the must be on civilians.” and he relied on following case to support his argument- Prosecution vs Bisenjimana [ICTR, 2006], Prosecution vs Semanza [ICTR (Trial judgement), 2003] and Blaskic vs Prosecution [ICTY (Appeal Judgement), 2004]

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