–Dr. M.T. Hussain
There is a group claiming that trial of the 1971 'war crimes' could be done by the International Crimes (Tribunal ) Act, 1973 that followed four days after the First Amendment of the Constitution made on the 15th July 1973 and also based on that amendment. I am afraid, not.
First, it is a basic principle of legal jurisprudence that no law can be retrospectively effective. In this case the incidents of 1971 can have no scope to have cognizance by the act passed after about two years in mid 1973.
Second, they are putting in idea of the Cambodian war crimes trial having some backing from the UN that started on the 18th February 2009 of one Khmer Rouge prison commandant of Tuel Sleng, Kaing Guek Eav nick named Duch, who used to claim for execution order on behalf of the top leader Polpot. The distinct and very much crucial difference is that Cambodia remained the same and one country before and after the human rights violations said to have had perpetrated in late 1970s. That the case of Cambodia was only for changing the government or regime change from the toppled Khmer Rouge whose top administrative leader Polpot (already died) had been the key person to order for and execution of victims.
The regime change had nothing to do so far as the change of entity of Cambodia was concerned, much less any way was for creation of a different independent country as it happened in case of Bangladesh through secession from the sovereign and independent State of Pakistan as that lawfully stayed until the 16th December1971. Had the country remained one Pakistan as before 1971 and Bangladesh would not have emerged as a different and independent country after December 1971 and that would remain so until now, the successive government or changed regime could put the perpetrators of 1971 to trial as is being done in Cambodia remaining the same country.
Third, the dismemberment of the sovereign and independent State of Pakistan in 1971 through aggression of Indian armed forces actively aided by the Bangladesh Freedom Fighters did resort to no less in similar crimes of human rights violation as the alleged anti-Bangladesh lot did. Furthermore, the pro-Bangladeshi groups had perpetrated the crimes against humanity not only during the period but also even after the formal war ended on the 16th December 1971. These pro-Bangladeshi lots had been given indemnity by the post 1972 Bangladesh government.
In the same token of indemnity, the top leader announced in public that he forgave all of the 195 listed war criminals, as well, and so the Pakistani army's listed 195 were permitted to go without facing any trial whatsoever and so they gracefully went to their own country Pakistan (West ). There was at that time none, not a single person other than those 195 had been listed for war crimes. The issue of war crime was picked up later here in Bangladesh only recently despite the fact that the 1973 tribunal was enacted in mid July, 1973, and curiously since then none had been indicted under the provision of the tribunal, mainly because the 1973 Special Tribunal Act had been void ab initio for being in essence grossly violating the basic human rights, apart from many other internal and external issues of serious concern for the then government that forced them not to go for any trial under the Act, and that still now exists for which the original 195 are in all likely would remain untouched and outside the proposed trial to take on in 2009 in Dhaka. The small fries here would thus be made escape goats while the big fries would remain untouched that in itself would be nothing but abuse of justice, if not miscarriage of justice
Fourth, so far as the constitution of the International Crimes (Tribunal) Act was concerned, it violated basic fundamental rights of citizens provided in the Bangladesh Constitution so much so that even the right of appeal in the Supreme Court for fair trial and justice had been denied that clearly went against basic human rights the UN is committed to uphold. That is why the Bangladesh retired Chief Justice Habibur Rahman in a meeting held on the 23 March 2008 in Dhaka stated in unambiguous term that no fair trial would be feasible under the Act unless it would be amended in consultation with neutral international jurists.
Fifth, should anyone now pick up the issue of 1971 in terms of de jure legitimacy of Bangladesh in 2009, it should be quite logical to put the question open that those who acted with full knowledge for dismemberment of Pakistan having no mandate of the people in the question of secession might be a valid point to turn the table upside down. In fact, that fear of the post 1972 Bangladesh charismatic leader rightly intended to finish up the sad business saying 'let's forgive and forget'.