A War Crimes Trial without Dead Bodies!
The detestable and morally bankrupt politician Salahuddin Quader Chowdhury (SQC) made quite an acute and insightful remark recently when he questioned why the war crimes investigators were interviewing witnesses but not going to the graveyard. It is very likely that SQC probably did not himself quite realize the legal implication and evidentiary significance of what he had just said. Put quite simply how can there be a trial if there is no proof of an offence having been committed? It is not sufficient simply to have witnesses testify that a crime has been committed there needs to be actual physical evidence that a crime was in fact committed. In the case of murder this should obviously be the object of the crime i.e. a dead body. In the more compelling situation of war crimes and mass murder there would probably need to be a large number of dead bodies put in evidence or the existence of a mass grave or two. Since Sheikh Mujiur Rahman himself estimated the number of dead during the 1971 war to be around 3 million finding the requisite number of dead bodies for a conviction in a war crimes trial should be a trifling matter. However, so far not a single piece of physical evidence of the type required has been produced by the investigators.
It is not sufficient in a court of law to have eye witnesses merely say that an accused was at a particular time and place where the offences were committed but more tangibly and specifically the actual object of the crime must also be produced in court (or more practically photographic evidence of the dead bodies) unless this proves entirely impossible to do. This may occur if the murderer pushed his victim into the sea and the body becomes impossible to recover. In such a situation conviction will rest on the credibility, believability and plausibility of the accounts of the eye witness testimonies alone. In the specific situation of the war crimes investigation in Bangladesh no such daunting problem exists. I assume that since 3 million people lost their lives in the war there must be an abundance of damning physical evidence to convict the several accused now in custody. Of course, for conviction to stand a generic number of dead bodies will not do but the actual victims for which the accused is standing trial must be produced in court (normally through photographic and forensic samples). There is, however, also the additional complicating matter of proving the manner of death of the alleged victims. The dead body must show signs of (abnormal or artificially induced) injury sufficient to cause death. Presumably in the case of war crimes the specific victims may indicate a bullet hole through the skull or fractured bones suggesting massive internal and external bleeding caused by repeated beating with a blunt instrument. Has the investigation committee exhumed any bodies or have they even sought permission to do so? Without this most basic and essential piece of evidence conviction is almost impossible and the trials will merely become a media charade and legal farce and justice will not be seen to be done. Sentiment and emotion alone will not bring a conviction in these cases.
If one takes as an example the Nuremberg Trials and the subsequent prosecutions brought against Nazi war criminals there was a mass of physical evidence produced in court as well as eye witness testimonies and documentary materials. In Bangladesh the investigators seems to be relying purely on testimonies of witnesses many of whom were not even present during the committing of the offences. None of those questioned appear to be actual eye witnesses to the events of murder committed during 1971. Everything that has been produced as evidence by the investigators appears to be purely circumstantial in nature. A witness may have seen an accused at a particular place and time where the crimes were committed but unless he actually saw the committing of an offence his testimony is of little intrinsic value. Similarly without the actual dead bodies produced in court in the form of photographic evidence and other forensic testimony to identify the bodies and the manner of death there is really no meaning to these trials.
Sohail Taj
Postgraduate Student
University College London
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