In its maiden verdict, the International Crimes Tribunal-2 gave its views on some debates and arguments over the issue of trying war criminals of 1971 more than four decades after the country's independence.
Many of these arguments were presented by the defence in the tribunals and have also been used in the political arena to oppose the ongoing trial of war criminals. And one of those involves the 40-year delay in holding the trial.
Abdus Shukur Khan, the state-appointed defence counsel for Abul Kalam Azad, raised similar questions during his closing arguments at the tribunal.
Shukur argued that the 40-year delay in prosecuting Azad was not “sufficiently explained” and such delay “created doubt about the fairness of the trial.”
In this regard, the tribunal said the question of time should not apply to the prosecution of perpetrators of crimes against humanity, as there is no time limit for holding criminal cases.
The tribunal said Nazi war criminals of World War-II are still being tried, and trial of genocides committed during the 1973 Chilean revolution and the Pol Pot regime in Cambodia in the 1970s is also going on.
Besides, neither the Genocide Convention of 1948 nor the Geneva Conventions of 1949 contains any provision on statutory limitations to trying war crimes and crimes against humanity, it said.
“In absence of any statutory limitation, as a procedural bar, only the delay itself does not preclude prosecutorial action to adjudicate the culpability of the perpetrator of core international crimes,” it said.
The crimes against humanity and genocide, the gravest crimes of all, “never get old”, said the tribunal.
“In Bangladesh, the efforts initiated under a lawful legislation to prosecute, try and punish the perpetrators of crimes committed in violation of customary international law are an indicia of valid and courageous endeavour to come out from the culture of impunity,” it said.
Shukur argued that the International Crimes (Tribunals) Act, 1973 was enacted to try 195 listed Pakistani war criminals and they were pardoned through a tripartite agreement in 1974.
“Without prosecuting those listed war criminals, the accused [Azad] cannot be brought to justice,” said the defence counsel.
The tribunal said such agreement was an executive act and it cannot create any obstacle to trying a member of “auxiliary force” or “an individual” or a member of “a group of individuals.”
“Such tripartite agreement, which is mere an executive act, cannot liberate the state from the responsibility to bring the perpetrators of atrocities and system crimes into the process of justice,” it said.
The International Crimes (Tribunals) Act is meant to try not only the “armed forces” but also the perpetrators who belonged to “auxiliary forces”, or “an individual” or a member of “a group of individuals”.
“Nowhere the act says that without prosecuting the armed forces [of Pakistan] the person or persons having any other capacity specified in section 3(1) of the Act cannot be prosecuted,” said the tribunal.
Shukur then claimed that the phrases “individual” and “group of individuals” have been “purposely” incorporated in the Act in 2009 through an amendment.
“Such amendment does not have retrospective effect, and Azad cannot be brought to the jurisdiction of the tribunal as an 'individual',” he said.
The tribunal said the amendment was brought merely for extending the tribunal's jurisdiction to bring the perpetrator of the criminal activities under the capacity of an “individual” or a member of “a group of individuals”.
“It is thus validly understood that the rationale behind this amendment is to avoid letting those who committed the most heinous atrocities go unpunished. This is the intent of bringing such amendment,” it added.
Shukur argued that Azad could have been prosecuted and tried under the Collaborators Order, 1972, if he had actually committed the crimes in 1971.
Noor Hossain, the investigation officer of the case, had earlier testified that a case was filed against Azad under the Collaborators Order after the Liberation War.
Referring to Noor's testimony, Shukur argued that if Azad was actually implicated under the Collaborators Order, it would be a “double jeopardy” to prosecute him again.
On Shukur's arguments, the tribunal said there is no proof that Azad was tried under the Collaborators Order 1972.
It said the offences punishable under the Penal Code were scheduled in the Collaborators Order 1972 while the International Crimes (Tribunals) Act was enacted to try crimes against humanity, genocide and other similar crimes.
“There is no scope to characterise the offences underlying in the Collaborators Order, 1972 to be the same offences as specified in ICT-Act,” the tribunal said.