| Dear sirs, Assalamu Alaikum.Please see the rejoinder and the response on the above subject.For once, Daily Star has given a reasonable response to two biased writers known for their partisan approach in most matters. In my view the whole thing is an unnecessary exercise.The issue of war crime trial does not exist after 1974 agreement among India and Bangladesh and Pakistan.As a result of that Sheikh sahib did not proceed further though the International crime Tribunal act was legislated in 1973. What is happening now after a long time of 38 years is attempt to victimise Islamic forces of the country.All nations, human right group organizations should try to stop this political agenda of a party and small groups like Ghadani and Sector Commanders forum ( in which all sector commanders are not represented) Rejoinder War Crimes Act does not need reform
(The following rejoinder was received by us some days ago. We publish it with our reponse given below). WITH both anger and amusement we read together a news report, published in the first page of the Daily Star of Dhaka, dated January 26 titled "War crimes Act needs reform" which is, as reported, the opinion of the International Bar Association and to say specifically that of its war crimes committee. The entire opinion was not reported. We tried in vain to get whole of it and so our reply will be incomplete. At the outset it is necessary to state that the International Bar Association, obviously formed by the professional lawyers, cannot claim and we are sure will not claim to be an humane organisation, but its members are engaged in legal profession on payment of fees to defend the persons accused in criminal offences knowingly or without caring to know whether their clients are guilty or not guilty. We guess some of the members of this Association may be engaged to defend the accused before the War Crimes Tribunal at There is "significant omission" as stated in that report with regard to protecting the rights of the accused is erroneous vis-à-vis section 17 of the International Crimes (Tribunals) Act, 1973 (hereinafter called as the said Act) which reads: "17. Right of accused person during trial-(1) During trial of an accused person he shall have the right to give any explanation relevant to the charge made against him. (2) An accused person shall have the right to conduct his own defence before the tribunal or to have the assistance of counsel. (3) An accused person shall have the right to present evidence at the trial in support of his defence, and to cross-examine any witness called by the prosecution. " Further, if convicted, he shall have the right of appeal to the Appellate Division of the Supreme Court of Bangladesh (read section 21 of the said Act). This provision of right of appeal is a unique guarantee to get the fullest justice and this provision was hitherto unknown to the international laws relating to trial of war criminals. Right to appeal does not exist in the ICC statute, nor in the ongoing trials in Another opinion that "crime against peace should be deleted as it contains outdated statutory language" is also erroneous. They obviously had not in their mind that the Tribunal at Dhaka shall have to try the crimes committed during the war of liberation in This is the copy in toto of crimes against peace as defined in principle vi (i) of the charter of Nuremberg Tribunal. Another opinion is that there is no mention of an essential element of a criminal offence, namely, mens rea or the guilty mind in the "crimes against humanity." This is the common law that a criminal offence consists of two elements - mental and physical. But this common law is applicable to ordinary offences under the penal code, but not to the extra-ordinary offences committed during the war. Principle 1 of the charter of Nuremberg Tribunal reads: "Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment," that is, only the physical element is necessary and not the mental element to constitute a war crime. It is absurd to keep a provision giving the right to the accused to challenge the constitution of the tribunal or the appointment of its members as suggested. This provision is not even in the Rome Statute of the International Criminal Court, but its article 41(2) only gives a futile right: "Any question as to the disqualification of a judge shall be decided by an absolute majority of the judges. The challenged judge shall be entitled to present his or her comments on the matter, but shall not take part in the decision." However, there will be always the inherent right to a judge to feel himself embarrassed and he may feel so, if and when necessary. Another objection is with regard to the provisions of investigation, in particular rules relating to self-incrimination and the suggestions is article 14 of the International Covenant on political rights as well as certain section of the Rome Statute should be included relating thereto. Prosecution is solely concerned with the investigation and the charge would fail if there is no proper investigation. We have read together several times article 14 of the International covenant on civil and political rights. For lack of space we are unable to quote that article, but we swear that none of the provisions contained in the said Act of 1973 offences any of provisions contained in that article 14. There is a proviso to article 8(5) of the said Act of 1973 which was not noticed that self-incrimination shall not subject the maker to any arrest or prosecution or be proved against him in any criminal proceeding. The suggestion that certain sections of the Rome Statute of the International Criminal Court dealing with rights of suspects during investigations should be included in the Act of 1973 would, we are afraid, further delay the trial. If we compare the preamble of our Act of 1973 with that of the Rome Statute of 2002 we will at once realise that there is not an iota of similarity as to the background against which the Act of 1973 or Rome Statute of 2002 was enacted. Act of 1973 was reviewed and fine-tuned by two of the finest international criminal lawyers, Professor Jeseheck and Prof. Otto Von Trifterer who assisted Justice Jackson, the chief prosecutor at the Nuremberg Trial. The two Professors were drawn from the Maxplank Institute of International Criminal Law, Later on in December 26-29, 1974, the Third International Criminal Law Conference at Dhaka, endorsed the 1973 Act: some of the jurists were A.N.F. Ballester, Director of Foundation for the Establishment of an International Criminal Court, Igor Blishchenko, Professor of International Law Institute, We are aggrieved by the report in question. For the persons who have prepared the report in question, we quote from the speech of D.N Pritt of "Moreover, these international crimes are not analogous to crimes committed by individuals against the laws and interests of their own states; they are mass crimes organised and planned by the state and not against it, as part of the policy directed to the destruction of the lives of innumerable civilians including children and women indeed of humanity as a whole, and the individuals taking part in the commission of these crimes are in general acting as the servants and not the antagonists of the state and its government. It follows that those crimes, by their very nature and origin, are not such as can be forgiven by the state or expiated by the passage of time, so as to exonerate these individual perpetrators, but are crimes for which neither the state itself nor the individuals can ever be forgiven." We would, therefore, request our concerned friends in refraining from making such remarks without fully understanding the history, milieu and background of the history of the war of liberation fought by the Bengalees with the help of the allied forces in winning freedom for establishing a democratic, non-communal, secular and equitable society. The trial thus is a necessity and not a luxury to consolidate the democratic aspirations of the Bengalees, a dream of the Father of the nation. Justice Mohammad Gholam Rabbani is a former judge of the Appellate Division of the Supreme Court of |
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