G M Quader
In any society good works are to be rewarded and bad deeds punished to identify the good and bad. This is essential for the development of value system. Rational Value system is a necessity for the establishment of discipline without which it would have been difficult to establish the rule of law.
In Bangladesh, during the period from March 26, to December 16, 1971, Pakistan armed forces were engaged in murder, torture, rape and persecution against the civilian population of Bangladesh. They declared that they would destroy part or if necessary the Bangali population living in Bangladesh and fill it up with people brought from Pakistan. They did everything to suppress the sovereign right of the people of Bangladesh in the name of saving the integrity of Pakistan.
In that act, forces like Razakar, Al Badr, Al Shams created by the Pakistan Army with volunteers recruited from local youths collaborated with them. Political parties like Jamat-e-Islami, Muslim League, Nezam-e-Islami supported the Pakistan occupation forces. The leadership of those parties took active part in organising these forces as leaders and encouraged party workers to become members of the collaborating forces.
War crimes, crime against humanity and genocide fall within the category of international crimes. These crimes are recognised internationally. It is not only the country where these crimes were committed but all countries of the world who are parties to the 1948 Genocide Convention and the 1998 Rome Statute of International Criminal Court are authorised to deal with the offenders like arranging for their trial.
War crimes are actions during war that are defined as not acceptable in 1949 Geneva Convention of Armed Conflicts. This includes disproportionate use of power and action against civilians. Crimes against humanity include murder, extermination, torture, rape and persecution or other inhuman acts as part of a widespread or systematic attack directed against any civilian population. Genocide includes any act of killing with intent to destroy in whole or in part, a national, ethnic, racial or religious group.
Acts committed as described above by the Pakistan Army, their auxiliary forces and with the cooperation of other collaborating forces on the civilian population of Bangladesh can fall under the criteria of international crimes of all the above three types. They can be considered as war crimes because of the brutality and systematic attack against a civilian population. It falls within the category of genocide as it was intended to destroy a part or whole of the Bangali population of Bangladesh.
On December 16, 1971, the occupation army of Pakistan surrendered to the allied forces. Afterwards measures were taken for the trial of war crimes. Amendments were later brought to the Constitution of Bangladesh to facilitate the trial. In 1973, the Constitution (First amendment) Act was passed inserting sub-article (3) in Article 47 and adding 47A (1) and (2). The amendment has provided scope for detention and trial of war criminals keeping the same out of provisions of part III (of the constitution) relating to fundamental rights. This means the accused in war crimes and similar cases as above cannot get any protection under fundamental rights granted by constitution that would be applicable to other accused.
Article 47 (3) of the constitution says, “Notwithstanding anything contained in this Constitution, no law nor any provision thereof providing for detention, prosecution or punishment of any person, who is a member of any armed or defense or auxiliary forces or who is a prisoner of war, for genocide, crimes against humanity or war crimes and other crimes under international law shall be deemed void or unlawful, on the ground that such law or provision of any such law is consistent with, or repugnant to, any of the provisions of this constitution.”
Article 47 A. (1) block the way to the suspected war criminals for seeking remedy as granted in article 31, 35 (1) & (5) and article 44. Article 31 ensures right to protection of law. Article 35 (1) provides protection in respect of trial and punishment, (5) provides protection against torture or cruel, inhuman, degrading punishment or treatment. Article 44 says about the scope for going to High Court Division for enforcement of fundamental rights.)
Article 47 A. (2), says, “Notwithstanding anything contained in this constitution, no person to whom a law specified in clause (3) of article 47 applies shall have the right to move to Supreme Court for any remedies under this Constitution.”
The above amendment authorises the government to take any legal measure for trial of war crimes and other international crimes without the risk of being challenged as being anti-constitutional.
International Crimes (Tribunals) Act 1973 was promulgated for the trial of suspected war criminals. The said Act provides authority to the government to set up tribunals for carrying out trial of war crimes. The law allows newspaper reports and photographs of war crimes admissible in court. A crime has to be proved beyond any reasonable doubt in normal cases. Whereas, under International Crimes Act 1973, it is not needed, making it easier to ensure punishment. The act also limited the scope of appeal against verdicts of the war crimes tribunals by allowing the convicted person only to go to the appellate division of the High Court.
Bangabandhu Sheikh Mujibur Rahman granted general amnesty on December 16, 1973 for those who collaborated with the Pakistani armed forces. But, there was exception as those who committed international crimes against unarmed civilian population of Bangladesh were not allowed the benefit of this amnesty. So there was always and still is scope for trial of collaborators under Internal Crimes (Tribunals) Act 1973. Furthermore, in the first amendment to the Constitution provides a blanket coverage for the formulation of any supporting legislature as and when needed.
Bangladesh, India, Pakistan signed an agreement on April 9, 1974, allowing 195 alleged criminals belonging to the Pakistan Armed forces who were suspected of indulging in international crimes in Bangladesh during 1971, to go free under an act of clemency. The question is: Did the leaders who allowed the clemency the authority to do so? Those crimes were done not only to the people of Bangladesh but towards the entire human race. International crimes are the jurisdiction of the entire world and not of the three countries that allowed the clemency. As such, should the fresh demand for trial of those 195 suspects now be considered as irrational?
Khemer Rouge Communist leaders including the former President Khieu Samphan are being tried under a war criminal tribunal in Cambodia for their involvement in killing of 1.7 million people, more than 28 years after the killing stopped with the assistance of the UN. Late President Slobodan Milosevic of Yugoslavia was brought to the Hague, the Netherlands and put to trial at the International Criminal Court in 2002 on charges of genocide, war crimes and crimes against humanity during the Bosnian conflict till he died in custody on March 11, 2006.
It is one of our duties now to start the process of trial of those who violated international laws and carried out atrocities against the people of Bangladesh during 1971. It is necessary that the guilty should get due punishment. Otherwise we may be considered a nation without a conscience in the eyes of the international community. We owe this to the human race for the sake of human dignity.
(Some of the information were taken from the article “International Laws and trials in Bangladesh” by Barrister Harun ur Rashid, The Daily Star, January 2 2008.)
GM Quader is a former member of the national Parliament.
(R) thedailystar.net 2007