Human Rights advocacy
Prosecuting 'International Crimes' at domestic level
Dr. Mizanur Rahman and S. M. Masum Billah
Given the limited number of international criminal tribunals and their scarce resources, war crimes prosecution by national courts seems to assume ever more importance. Bangladesh was the pioneer in formulating first national war crimes law in the history of the world back in 1973, spirit of which was later inculcated in the ICC statute, can again become an example of effective national prosecution of war crimes with a blend of national and international criminal jurisprudence. The case of Sierra Leone, Dili, Cambodia, and Lebanon experiences with suitable compatibility may be the torch bearer for Bangladesh.
Certain crimes because of their very nature, gravity, magnitude and horrendousness are today defined as 'international crimes'. The war crimes, genocide, crimes against humanity, crimes against peace and international law do fall within this category. The consequences of these types of crimes are devastating in nature. The ICJ in its Advisory Opinion on Genocide Convention 1951 said that sates have a duty to ensure the 'condemnation of genocide' and to co-operate international community 'in order to liberate mankind from such odious scourge.”
Bangladesh cannot go with the stigma of that scourge, so should have the case with Pakistan. Pakistan failed to prosecute the blue-printers of the international crimes irrespective of giving promise to do so. Bangladesh cannot and should not fail to prosecute the rest notable perpetrators at least (who belonged to auxiliary forces like razakars, al-badrs and al-shams).
Does Bangladesh have jurisdiction?
Jurisdiction is the critical legal issue underpinning the prosecution of war criminals in a state's courts. A state must establish proper jurisdiction to assert judicial and penal authority over such offenders. Legally defined, jurisdiction is "the authority of states to prescribe their law, to subject persons and things to adjudication in their courts and other tribunals, and to enforce their law, both judicially and non-judicially." Jurisdiction involves a state's legitimate assertion of authority to affect its legal interests, and applies to law-making activities, judicial processes, or enforcement means.
Domestic jurisdiction of the state is one of the manifestations of state sovereignty and hardly raises any concern from other states or bodies. Jurisdictional manifestations of Bangladesh to try the 1971 war criminals and perpetrators of genocide fit with the provisions of international law. Article 3 of the International Crimes (Tribunal) Act 1973, accommodates the blend of national, territorial and universal manifestations of jurisdictions. Every state may create its own laws for defining and punishing war crimes, but the definitions of war crimes usually overlap with the definition of war crimes established under international law. Thus, any state may exercise universal jurisdiction under international law to punish persons who commit acts falling within international law's definition of war crimes.
The universal jurisdiction has been the key consideration in prosecuting the war criminals which is established over certain crimes (such as piracy, war crimes and genocide) without reference to the place of perpetration, the nationality of the suspect or the victim or any other recognized linking point between the crime and the prosecuting State. The international crimes are so inherently odious that it must be treated differently from ordinary delicts. It is against the universal interest, offends universal conceptions of public policy and must be universally condemned. The perpetrators are viewed as hostis humani generis, enemies of humankind, and any state which obtains custody over them has a legitimate ground to prosecute in the interest of all states, even if the state itself has no direct connection with the actual crime. In Eichmann case, the Jerusalem District Court upheld Israel's jurisdiction to try Eichmann and observed, “the jurisdiction to try crimes under international is universal.” To date, one can say that universal jurisdiction is not a formula for gaining jurisdiction, but one for placing the national legal order at the service of the international community. Bangladesh can legitimately manifest this service.
War crimes law and constitutionality question
International Crimes (Tribunal) Act, 1973 Act is a constitutionally protected legislation (Article 47A of Bangladesh Constitution). The constitution derives its validity from the people itself. Bangladesh has secured independence through a liberation war (the war was unjustly imposed) and proclamation of Bangladesh Independence forms the genesis of Bangladesh constitution (B. H. Chowdhury J. in 8th Amendment Case, 1989). The safeguard against post-facto legislation is not applicable for law passed which is designed to prosecute and punish the international crimes. An analogy may be drawn from Australian jurisdiction. The Australian High Court upheld the retrospectivity of a national war crimes law in Polyukhovich case (1998) and said, “The retrospective operation of the Australian War Crimes Act was authorized by the constitution since that operation was a matter incidental to the execution of a power vested by the constitution in the parliament.” In that case, Ivan Polyukovich was charged with war crimes in respect of acts allegedly committed by him during World War II. He initiated a challenge to the constitutional validity of the Australian War Crimes Act, on the basis, inter alia, that the Act purported to operate retrospectively. The Court held that the Act is not retrospective in operation because it only criminalizes acts which were war crimes under international law as well as “ordinary” crimes under Australian law at the time they were committed.
Trying the '2nd line' perpetrators
The commanding level soldiers have escaped justice so the lower level perpetrators should also escape - is a kind of argument manifestly unjust and untenable in law. Without allies how can a massacre happen? More so, the charges against the perpetrators, be he an army officer, be he a member of a group or even an individual, likely to be charged not merely for 'war crimes' or 'massacre' but also for 'crimes against humanity' which is a more matured expression of international criminal law. Legal definition suggests that the planners and participators are liable to the same extent. International criminal law has discarded the command responsibility. Though superior's order can be argued as a mitigating factor in some cases. In 1971, the world witnessed acts of genocide committed by the Pakistani military and their allies against the Bangalees in general and Hindu Bangalees in particular in Bangladesh. The military regime of Pakistan being aided and instigated by their native allies (razakar, al-badr, al-shams etc) committed incalculable and unprecedented genocide in Bangladesh.
Collectively known as the Razakars, the paramilitary units spread terror throughout the Bengali population. With their local knowledge, the Razakars were an invaluable tool in the Pakistani Army's arsenal of genocide. By an Ordinance (East Pakistan Razakar Ordinance, 6th June 1971) the razkar, al-badr, al-shams were declared to be the auxiliary forces of the Pakistan Army. The proposed trial should prefer first the commanding level leaders of razakars, al-shams, etc. From Pakistan Government's Ordinance and surrender document of 16th December 1971, they appear to come within the definition of 'auxiliary forces'- a term which the constitution also mentions in Article 47 A.
There are two principal points of charging the auxiliary forces members, one for actual commission and another for planning, abetting and conspiracy to genocide, war crimes and crimes against humanity. Actual commission, planning, incitement to genocidal offences are treated in the same line. Rwanda's Akaeshu Case (1998) has established that incitement to genocide is equally indictable like the actual commission of genocide itself. Incitement has been a precursor to, and a catalyst for, modern genocides. It may even be a sine qua non, according to witnesses and the abundant historical and sociological literature on the topic. It seems that without incitement, genocides like the Holocaust and especially the Rwandan one might not have happened.
The evidence is strongest with respect to Bangladesh genocide where religious feelings were used to execute massacres. These are also the cases on which there is the greatest scholarly consensus that they were in fact genocides. Incitement seems to play a critical role when intended victims live among the majority group, so that mass killings cannot take place without the participation or at least the tacit acceptance of many members of the majority group. In Nazi Germany and in Rwanda there were well-documented incitement campaigns. In Turkey, there were plans to “excite Moslem opinion by suitable and special means” before the Armenian genocide. By contrast, in Darfur, ethnic cleansing and killings have been carried out by paramilitaries (Janjawiid) mainly in villages inhabited solely by their victims. There is huge documented evidence of razakars, al-shams, al-badr etc (which we prefer to call 'auxiliary forces') members for urging people to 'maintain the unity of Pakistan and the sanctity of Islam' and to 'exterminate the enemies'.
Obstacles to prosecution
What are some possible obstacles and challenges before the prosecution of war crimes in Bangladesh? Perhaps Bosnia and Herzegovinian experience can be an example. The problems faced by the Bosnian domestic courts in prosecuting the war crimes were manifold. Some may perceivably be identical with the Bangladesh situation like security question of the judges and prosecutors, difficulties locating and securing the attendance of witnesses and defendants, inadequate witness protection mechanisms and large case loads etc. How can we tackle all these forseeabilities? One simple way of avoiding large-scale case loads is to choose the cases and charges strategically. The other points are much more a question of commitment than law. Failure of the authorities to address impunity would seriously undermine the rule of law and negatively impact public confidence in the legal system. Conscientious efforts are to be made to face these challenges and bring those responsible for war crimes to justice.
The war criminals sicken the conscience of civilised society. Experience of 'international crimes' is a saga to a nation's psychology. The ICC Statute to which Bangladesh is a party as of now, in its preamble has laid down that there should be an end to impunity for the perpetrators of the heinous crimes and states that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes. International crimes is an act of total and most crude form of denial of the basic right to life of individual and so repugnant to human dignity. Preservation of human dignity in all situations is a non-derogable obligation of the states in the human rights regime created by the international community. It is not only for the rule of law, not only for the sake of justice but even more for the sake of humanity that the perpetrators of 'international crimes' in 1971 be brought to justice.
Dr. Mizanur Rahman is Professor of Law, University of Dhaka.
S. M. Masum Billah is Assistant Professor of Law, Jagannath University, Dhaka.