War crime trial dogged by conflict of laws
M. Shahidul Islam
Contrary to sweeping assertion that the government of Bangladesh lacks judicial mandate to embark upon the 1971 war crime trial, the lack of authority is not what undercuts the validation of such a trial. Rather, conflict of laws is what seems to be making the venture questionable, (and) controversial.
Besides, the arrest of some suspects of the crime long before the framing of the charge has created a procedural breach under the 1973 International Crime Tribunal Act (ICT) itself. And, the Law Minister's recent assertion that the US and the UK have no business to poke their noses in the trial proceedings made things further worse.
The Law Minister seems to be trying to make a scramble without breaking the egg. Whether one calls it war crime or crime against humanity, any trial relating to such crimes derives its authority from the UN Convention on the Prevention and Punishment of the Crime of Genocide (GA Res. 260A, 1948), which recognized the principles and the judgments of the Nuremberg trail and made it an integral part of customary international law. The Convention also mandated that a competent tribunal of the state where the crimes took place could hold the trial, although most of the trials so far had taken place under an international panel tribunal to ensure neutrality and fairness.
Despite the concerned UN Convention having proven controversial from the outset — for its presupposition about the existence of an international government to try international crimes by an international panel — the concurrent empowerment of concerned municipal government's aimed at overcoming that drawback. And due to such crimes involving trans-national parties, the Security Council (UNSC) removed the veil of ambiguity by creating an international tribunal on February 22, 1993 to conduct trial of genocide in former Yugoslavia. A similarly constituted court tried the Rwanda war crime trial in 1994 and issued indictments.
Conflict of laws
The conflict of laws arises from the jurisdiction, mandate, applicable/conflicting laws, etc. Besides, procedural and legal fairness remains a central concern in such trials.For instance, death penalty may be an acceptable norm under the domestic law of some nations, including ours, but it is not permissible in many other countries or in the international crime tribunal. Secondly, although confessions taken under torture and other coercive means are not recognized as admissible evidence under the domestic and international laws, we have an exception in this regard too, albeit theoretically. Finally, absence of all the parties involved in the 'chain of the crime,' especially when the trial occurs under the municipal law of a particular nation may invalidate the legality of the entire trial proceedings by challenging its authority and fairness.
In our instance, deprivation of right to appeal/judicial review, as was stipulated in the latest amendment to the International Crime Tribunal (ICT) Act of 1973, is blatantly contradictory to the equal rights afforded to every citizen in Article 27 of Bangladesh Constitution. This fundamental right can only be waived if the accused are not citizens of Bangladesh, which they are.
Murky backdrop
There is little doubt that the instances of war crime, genocide and other crimes against humanity were rampant and ubiquitous during Bangladesh war of liberation in 1971. Yet, our government failed to impress upon the UN to convene a special committee to legally authenticate the crimes' commission. Instead, the government of Sheikh Mujib promulgated Bangladesh Collaborators (Special Tribunals) Order on January 24, 1972 for trial of 'domestic collaborators'. The crimes having originated from the order and command of people who ceased to be part of our nation as of the Proclamation of Independence Order in April 1971, the collaboration order turned into a weapon of prosecution against selective Bengali 'subordinates' of the Pakistani armed forces who had planned and directed the crimes' perpetration.
This fundamental flaw was further compounded due to other legal inhibitions, compelling the Mujib regime to enact the First Amendment Act to the Constitution on 15 July 1973. The Act amended Article 47 of the Constitution by inserting an additional clause which allowed prosecution and punishment of any person accused of 'genocide, crimes against humanity or war crimes and other crimes under international law'. That too failed to remove the legal inhibitions in their totality, due to the insertion of Article 47A which rendered inapplicable for the accused certain fundamental rights guaranteed in the Constitution. That has resulted in the passing of the International Crimes (Tribunals) Act (ICT) on July 20, 1973.
International agreements
The ICT did relate such crimes as being the staples of international law, as they are supposed to be. The main obstacle proved to be the fate of some 30,000 captive Bengali soldiers (ranging from sepoy to three star generals) and non-combatants who awaited repatriation from Pakistan while Islamabad had serious concerns about the fate of some 90, 000 of its soldiers who had surrendered, pursuant to the Geneva Convention, to the Indian army on December 16 and awaited repatriation to Pakistan. Pakistan argued that it had followed armistice on December 16 under international laws of war, and, the absence of any certification by a competent UN-sponsored commission that the alleged war crimes constituted genocide had immune its forces from undergoing such a trial under the municipal law of Bangladesh.
Tripartite agreement 1973
Pakistan also managed to convince India, within weeks, to sign (on August 28, 1973) a tripartite agreement in which India signed on behalf of Bangladesh. The agreement stated in clause V1 that "Bangladesh agrees that no trials of the prisoners of war shall take place during the entire period of repatriation and that pending the settlement envisaged in clause (V11) below these prisoners of war shall remain in India."
Meanwhile, in order to obtain formal recognition from Pakistan and other Muslim countries — as well as in deference to the tripartite agreement of 1973 - the government of Bangladesh declared a general amnesty on November 30, 1973 for those collaborators 'not yet charged with specific allegations of war-related atrocities'. The Press Note on general amnesty categorically said, "Those who were punished for or are accused of rape, murder, attempts to murder or arson will not come under general amnesty." This resulted in the release from prison of some 26,000 detainees, out of 37,000 suspected collaborators who were apprehended and processed for trial in the aftermath of the war.
Minister's arrogance
The political changeover of 1975 having restored judicial fairness in the amended Constitution, about 11,000 suspected collaborators took recourse to appeal reviews and got released. The Collaboration Order itself was repealed on December 31, 1975 and the file closed, in order to move ahead with a renewed spirit of national reconciliation.
Despite that being the backdrop, our Law Minister managed to antagonize two of the friendly international partners of development – USA and UK – by stating lately that they had no business of poking noses in the war crime trial. The comment displayed a bad mix of ignorance and arrogance, and defied the very rationale of the trial due to the crimes involving resolution and 'closed transactions' reached through international agreements, armistice and repatriation-related conditionality signed after the conclusion of the 1971 war, as well as the affordability and the accessibility of the accused to a varied mix of fundamental rights outlined in the relevant International Human Rights Charters of which Bangladesh is a signatory.
UN, relevant bodies
The UN and other relevant international governments and organizations thus have a moral compulsion to ensure that the trial is procedurally and legally fair and the rights of the accused are respected to the fullest extent. That is precisely why the government requested the UN in September 2009 to dispatch a team to Dhaka to advice on the technicalities of the war criminals trial. The USA and the UK are permanent members of the UN Security Council.
The Law Minister's assertion also stands in stark contrast with the amendments brought to the 1973 ICT on July 9, 2009, whereupon the accepted definition of 'armed forces' now means the forces raised and maintained under the Pakistan Army Act 1952, the Air Force Act 1953 and the Navy Ordinance of 1961. That effort too aimed at ensuring the legal and the procedural fairness of the trial itself.
More amendment needed
Instead of showing arrogance, the government must reconsider to amend the 1973 ICT further due to the latest amendment having inserted a very objectionable clause that allows trial of individuals for war crimes 'even if they are not member of an 'auxiliary force' created under the Pakistan Armed Forces Act(s)' cited above.
This particular clause does not obey the rules with the stipulations of the 1949 Geneva Convention and many other Protocols in which the stature of a person in the hierarchy of command is viewed as being determinative of whether that person has had command responsibility, or, the blame should be attributed to the civilian masters of the military and/or other auxiliary forces under their command. Historically, every war crime trial dealt with two questions in particular: whether (1) compliance of order from superior officers serves as a defence for the accused, and, (2) how far the command responsibility traverses up the chain of command?
When things are so complicated, our government should strive to ensure that the conflict of laws are addressed, international agreements are complied with, and concerned international organizations and the governments are allowed to play a decisive role in ensuring the legal and procedural fairness of the trial.
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