On December 12, 2013, at 10:01 PM, Abdul Quader Mollah became the first person to be executed in Bangladesh on allegations of crimes against humanity. His case stands out as one of the gravest miscarriages of justice in the country’s recent history. To facilitate his execution, the legislature retroactively amended the law, enabling the government to appeal his initial life sentence. The then Appellate Division, in turn, reinterpreted established principles of jurisprudence and evidence to align with the government’s intent to secure his hanging. 2013 was an election year, and members of parliament and government ministers openly referred to the execution as a “gift to the nation.” Mollah was executed based on a rushed “short order” issued by the then Appellate Division, prepared specifically to allow the execution on the same day the judgment was passed. He was never given the opportunity to see the full order upon which his life was ended. This event remains one of the most disgraceful episodes in the history of the then Appellate Division, reflecting a troubling disregard for justice and due process.
This December marks the 11th anniversary of the execution of Abdul Quader Mollah. For those now advocating amendments to the International Crimes (Tribunals) Act, 1973, to ensure fair trials for members of the recently ousted Awami League government, it is vital to remember Mollah’s case. His execution was not just the product of an outdated and flawed law but also of a compliant judiciary.
Initially, the Tribunal sentenced Mollah to life imprisonment, despite limited evidence to support any conviction. Much of the evidence was weak and crumbled under cross-examination. One notable witness implicated Mollah in the Tribunal but failed to mention him in her account of the same incident in a book she had authored. Her excuse? She had “saved the truth” for the witness box. Judges frequently intervened to protect witnesses from collapsing under cross-examination, undermining the defence’s ability to challenge the prosecution effectively.
The Appellate Division, however, enhanced Mollah’s life sentence to the death penalty. His execution was based on a single charge, and a closer examination reveals how the State and the then Appellate Division conspired to ensure his hanging. First, the Appellate Division sidestepped international law entirely. Recognizing that adherence to international legal standards would complicate the case, it declared that international law did not apply to the Tribunal. This excluded the extensive body of precedents set by UN tribunals in Yugoslavia, Rwanda, and Sierra Leone. In its lengthy judgment, the Appellate Division did not cite a single international tribunal ruling. Instead, it crafted its own definition of murder as a crime against humanity. When Mollah’s counsel, Abdur Razzaq, cited rulings from the UN Rwanda Tribunal, then-Chief Justice Md. Mozammel Hossain dismissed them with a condescending comment: he asserted that Bangladesh’s judicial history, dating back to the Mayors’ Court of 1726, was far more developed than the legal systems of African countries. This dismissive and racially charged observation conveniently justified ignoring international legal standards, allowing the Appellate Division to redefine crimes against humanity. Contrary to international law, it ruled that neither a widespread or systematic attack nor an attack on a civilian population was necessary to prove such crimes. This shocking deviation from global standards paved the way for Mollah’s execution.
Second, the Appellate Division reinterpreted the doctrine of joint criminal enterprise, effectively equating it with guilt by association. Mollah was deemed guilty simply because he was allegedly seen associating with individuals who had committed offenses.
Finally, the Appellate Division altered rules governing cross-examination and evidence admissibility. The key charge leading to Mollah’s execution relied on the testimony of Momena Begum, who implicated him in her deposition before the Tribunal. However, she had failed to name him in her earlier statements to a museum and to the Tribunal’s own investigating officer. These prior inconsistent statements undermined the prosecution’s case. To counter this, the Appellate Division changed the rules: cross-examination was restricted to statements made during direct testimony (examination-in-chief). This prevented the defence from relying on Momena’s previous inconsistent statements. By disallowing significant portions of the cross-examination, the Appellate Division cleared the path for Mollah’s execution.
As a defence lawyer actively participating in the Tribunal proceedings from 2011 to 2013, it quickly became clear that the biggest obstacle to justice wasn’t just the outdated law—it was the actions of the Tribunal and the then Appellate Division. Time and again, the Tribunal restricted our ability to conduct thorough cross-examinations, refused to admit additional evidence that could support the defence, while granting the same privileges freely to the prosecution. Meanwhile, the Appellate Division’s selective reinterpretation of legal principles further undermined our case. It wasn’t just the flaws in the legal framework—it was the systematic bias and procedural roadblocks imposed by the very institutions meant to uphold justice that made a fair defence nearly impossible.
As a former defence counsel, the Chief Prosecutor, Mr. Md. Tajul Islam, is acutely aware of the ICT’s shortcomings and is working diligently to address them by advocating for amendments to the law. In the past, the ICT struggled with issues such as non-compliance with international law and insufficient training for judges and prosecutors. The recent appointment of Toby Cadman, a British barrister and renowned international criminal lawyer, as special advisor to the Chief Prosecutor, signals a commitment to raising the prosecution’s standards. This marks a significant step forward, especially considering the deficiencies of past prosecutors, many of whom lacked training in international criminal law. Some were even dismissed over allegations of financial misconduct and professional improprieties. This renewed focus on expertise and integrity offers hope for a more robust and credible prosecution process moving forward.
The new Tribunal now faces the monumental task of overcoming a deeply tainted history. The miscarriages of justice committed by the previous Tribunal must be addressed. For those advocating changes to the International Crimes (Tribunals) Act, 1973, to ensure fairer trials, it begs the question: why not also confront the injustices already perpetrated under the same flawed system? Ignoring past wrongs reveals a narrow political agenda—seeking amendments only to secure fairness for current trials, while disregarding the suffering and executions endured by members of other political parties under the same law. Such selective advocacy undermines the broader pursuit of justice and fairness.
A constructive way forward would be to establish a statutory body like the Criminal Cases Review Commission (CCRC) in the United Kingdom. Amending the law to set up such a commission is essential. This body would be tasked with reviewing cases, regardless of whether an appeal has been filed or disposed of by the Appellate Division. It would also handle posthumous applications from the families of executed individuals. If the commission recommends a review, the Appellate Division should be obligated to re-examine the conviction and sentence.
Those advocating for fair trials must recognize that ensuring justice today requires addressing the injustices of the past. Rectifying past miscarriages of justice will serve as a critical reminder to future tribunals of the importance of fairness and adherence to the rule of law. It will also create a strong incentive for those administering justice to act with integrity and fairness.