International laws and trials in Bangladesh
Barrister Harun ur Rashid
Crime, although committed against a person, is an offence against a State and that is why state prosecutors (public prosecutors) pursue a criminal case. A person who allegedly commits a crime can always be charged until he/she is alive. Unlike civil litigation or disputes, length of time does not affect crime. In other words, it does not have statutory limitation and does not lapse.
War crimes, genocide and crimes against humanity are categorized as international crimes. These crimes have their universal application because of their brutality and systematic attack against civilian population.
Any individual suspected to have committed such crimes can be tried by states at any time that are parties to the 1948 Genocide Convention and the 1998 Rome Statute of International Criminal Court.
Definitions of international crimes
War crimes: any crime that is contrary to the 1949 Geneva Convention of Armed Conflicts. This includes disproportionate use of power and action against civilians.
Crimes against Humanity: This includes murder, extermination, torture, rape and persecution or other inhuman acts as part of a widespread or systematic attack or with knowledge of attack, directed against any civilian population and knowledge of attack.
Genocide: Genocide includes any act of killing with intent to destroy in whole or in part, a national, ethnical, racial or religious group.
Difference between genocide and crimes against humanity
If the definition of genocide under the 1948 Genocide Convention is examined, it is argued that the definition of genocide requires the "intent to destroy in whole or in part" of which intent can be difficult to prove in the court of law and especially those acts stemming from conflict situations.
While the crimes against humanity under the 1998 Rome Statute, do not arguably require an "intent to destroy a group in whole or in part" by the perpetrators, but instead require that such atrocities detailed in the definition such as murder, extermination and so on, are committed as part of a "widespread or systematic attack directed against any civilian population, and "knowledge of the attack" refers to the knowledge of the perpetrators or supporters of the attack, or of those in power situations who have acquiesced to the attack, upon any civilian population.
The responsibility first lies on the state where crimes had occurred. If the domestic system falters or fails in this respect, international mechanism may come into play. In that sense, international mechanisms operate to provide redress where the domestic system fails or is found wanting.
For example, on a request from Spain, Chilean late President Augusto Pinochet was arrested in London in 1998 for crimes against humanity and only on medical grounds, he was released. Yugoslavia's late dictator Slobodan Milosevic was surrendered by the Serbian government and was put on trial at the Ad-hoc International Criminal Court in 2002 on charges of genocide, war crimes and crimes against humanity in Bosnian conflict until he died in custody.
In recent times, more than 28 years after the killing stopped, Khemer Rouge Communist leaders are being tried before a tribunal in Cambodia with the assistance and advice of the UN.
From 1975 to 1979, the Khemer Rouge leaders embarked on a pre-planned economic and social experiment and during the experiment, about 1.7 million died from brutal treatment, starvation and disease, especially those who lived in urban areas. The extermination has been known as the “Killing Fields” in international community.
The hearing on last 20th November came one day after the arrest of the last of the five alleged criminals being pursued by public prosecutors, the former Khemer Rouge President, Khieu Samphan, 76. Taken by the police from a hospital where he was recovering from an apparent stroke, he was charged with war crimes, and crimes against humanity.
The above instances demonstrate that no one, even a head of state, is immune from criminal trial against war crimes, genocide and crimes against humanity.
One may argue that there were many reasons inside and outside the country that could be attributed for not commencing trial for the last 36 years. Some argue that elected governments neglected this matter, reasons only known to them..
It is noted that the amnesty granted by Bangabandhu Sheikh Mujibur Rahman on December 16, 1973, the second anniversary of Independence, did not apply for those who had specific charges of collaboration with the Pakistani armed forces who committed international crimes against unarmed civilian people in Bangladesh.
Against the background, it has been strongly argued by various organizations that alleged perpetrators could easily be tried for crimes against humanity for their commission of such crimes against civilian population under the existing International Crimes (Tribunals) Act 1973.
The International Crimes Act 1973 provides the government with power to try the suspected war criminals of 1971 by setting up tribunals.
The Act which was promulgated under the blanket immunity for the government provided by the first amendment to the Constitution in 1973 for trying war criminals, also scraps the usual protections ensured for the accused in the Criminal Procedure Code 1898 and in Evidence Act 1872, (the law makes newspaper reports and photographs of war crimes admissible in court) in an effort to ensure meting out of punishments to war criminals.
Furthermore, ordinarily a crime has to be proven 'beyond a reasonable doubt' in criminal laws, but this high standard does not pertain to trials under the 1973 International Crimes Act, making it much easier to prove international crimes.
The Act also limited the scope of appeal against the verdicts of the war crimes tribunals as it provides a convicted person may appeal only to the Appellate Division of the Supreme Court against a judgment.
However the success of the prosecution case at the court of law under the current legal system in the country depends largely on three factors (a) identification of suspected criminals, (b) collection of evidence including documentary and circumstantial and (c) proof of connection, direct or indirect, between the crimes and the alleged perpetrators.
The alleged perpetrators will have the right to be represented by their defence lawyers.
Among others, defence lawyers may argue, that while Pakistani alleged criminals totaling 195 who were directly or indirectly involved during the butchery of Bangladeshis in 1971 were allowed to go free under “an act of clemency” by the then government in 1974 in terms of the Bangladesh-India-Pakistan Agreement of April, 9, 1974, the case against the alleged perpetrators in Bangladesh who had a supportive role, may be set aside.
The text of the 1974 Agreement is a public document and paragraphs 14 & 15 of the Agreement are relevant in this context.
It is therefore imperative preparation of the case by the prosecutors needs to be thorough, based on documents including newspapers of 1971 and statements of witnesses, with a view to rebutting the arguments of defence lawyers.
Process of trial by Care Taker or Elected Government
One fundamental question has been raised is whether this caretaker government or elected government will take action in establishing tribunals for trial. There appear to be two sides of the arguments.
One side argues that the caretaker government may start the process and should not wait for the elected government to do so.
Their line of argument runs that this caretaker government is no ordinary caretaker government because of its long tenure (not three months like the past caretaker governments) and it has already engaged itself with some reforming tasks that are not routine functions but related to policy that will have long-term consequences for the country. Therefore they argue that the caretaker government may establish tribunals for the trial under the existing law of the land.
The other side advances the argument that the sole purpose of the caretaker government is to create a suitable and congenial environment for the Election Commission to hold free, fair and credible election (Article 58D of the Constitution). It is noted that past elections were reportedly held under the shadow of money power, muscle influence, and bogus voters, among others.
They argue that the caretaker government is therefore empowered to discharge responsibilities in relating to actions that are connected for fair elections, besides maintaining law and order as well as performing necessary functions to govern the country.
Accordingly they argue that whatever steps or actions this caretaker government has adopted are related to creating a congenial environment for impartial, free and fair elections. Therefore they advance the argument that it is not the responsibility for the caretaker government to proceed with the process of the trial.
Despite the argument for and against the Caretaker government in establishing tribunals for the trial, one fact is clear that the trial in Cambodia with the assistance of the UN shows that time and inaction in the past does not matter.
The proposed trial in Bangladesh will be seen to be consistent with the spirit and aims of the UN and action against inhuman and senseless crimes that are condemned by the civilized world. The effective punishment is an important element in the prevention of such crimes, protection of human rights and the promotion of international peace and security.
The writer is Former Bangladesh Ambassador to the UN, Geneva.