An End to Impunity

DR. MIZANUR RAHMAN explores the issue of trying the war crimes
of 1971 in the context of international law.

The phrase juddhaporadhider bichar can sometimes give you a misleading impression. If you take the words in the sense of "trial of war criminals" then there is an apprehension of losing the complete sense it tries to convey about the ongoing trial of international crimes suspects. The words confine the meaning within only "war crimes", which should be its genus "international crimes", i.e. war crimes, genocide, crimes against humanity, and crimes against peace and international law.

From this perspective, it is suggested that the more accurate phrase should be juddhokalin shonghotito oporadh, i.e. crimes committed during the war of 1971. The use of words like juddhaporadhider bichar or manobotar biruddhe oporadh by the media and the public tends to bewilder the people at large and provides a space for the critics. However, the much-awaited trial of the alleged perpetrators of "international crimes" committed during the 1971 Bangladesh Liberation War is in the queue. It is a matter of the highest interest and concern for both the national and the international observers as to how the constituted investigation agency and the tribunal function. How the government responds and helps the prosecution is also a matter to be seriously looked at.

An end to impunity
It is because of the culture of impunity, from the unprecedented Bengali-massacres in 1971 to massacres in Darfur; from the "ethnic cleansing" in Bosnia and the Srebrenica enclave to the attacks on Kosovo Albanians; and from Sierra Leone to Uganda that the world has continued to witness malevolent deeds that surpass understanding.

Photo: ANISUR RAHMAN

At home, it is because of the culture “of impunity that we have lost the Father of the Nation and the national political leaders. These atrocities recur in spite of the increasing interest in bringing the perpetrators to justice. The perpetrators of international crimes sicken the conscience of a civilised society.

The Statute of the International Criminal Court, to which Bangladesh is a party, 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 are abhorrent conduct of the crudest form of denial of the basic right to life of individuals. Preservation of human dignity is an 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 for the sake of humanity that the perpetrators of genocide in 1971 be brought to justice and duly punished through a trial conducted in accordance with due process of law. Antonio Cassesse, the renowned international criminal law jurist, in his report to UN General Assembly wrote in 1994:

“How could one hope to restore the rule of law and development of stable, constructive and healthy relations among ethnic groups, within or between independent states if the culprits are allowed to go unpunished? …How could a woman who had been raped or a civilian whose parents or children had been killed in cold blood quell their desire for vengeance if they knew that the authors of these crimes were left unpunished and allowed to move around freely, possibly in the same town where their appalling actions had been perpetrated? The only civilised alternative to this desire for revenge is to render justice."

The words of Cassesse are relevant for the Bangladesh case with equal force.

Why trial at domestic level?
The reluctance of the international community to bring the perpetrators of the 1971 genocide in Bangladesh to trial was the reason why further genocidal atrocities could not be prevented. However, the later international tribunal's emerging jurisprudence in prosecuting atrocities has increased the possibility of trying the criminals at the national level, with empowerment and cooperation by the international community. A multifaceted approach that marshals legal judgments by national courts -- which bear the primary responsibility along with other tools such as asset freezes, travel restrictions, and political stigmatisation -- should have a meaningful impact on deterring future crimes. If the risk of being caught in the net of criminal tribunals grows, so will the prospects for deterrence. Given the limited number of international criminal tribunals and their scarce resources, war crimes prosecution by national courts assumes even more importance. Bangladesh was the pioneer in formulating the first national war crimes law in the history of the world back in 1973, the spirit of which was later inculcated in the ICC statute, and can again become an example of effective national prosecution of international crimes with a blend of national and international criminal jurisprudence. The cases of Sierra Leone, Dili, Cambodia and Lebanon, with suitable compatibility, may be the torch- bearer for Bangladesh.

Bangladesh's jurisdiction to try the perpetrators involves her 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. Apart from this, a state may exercise universal jurisdiction under international law to punish persons who commit acts falling within international law's definition of war crimes, crimes against humanity and genocide. In the Eichmann Case (1962), it was held that the jurisdiction to try crimes under international law 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 offer this service. 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.

Crimes against humanity
There are no human rights without remedies for human wrongs, in the sense of arrangements for punishing those guilty of crimes against humanity. These are broadly but clearly defined by international law and recognised by national legislation -- the International Crimes (Tribunal) Act, 1973 of Bangladesh, for example. The ambit of crimes against humanity includes murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during a war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime, within the jurisdiction of the tribunal, whether or not in violation of the domestic law of the country where perpetrated. Leaders, organisers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any person in the executions of such plans.

People who are critical of the trial of the perpetrators of manobotar biruddhe oporadh (crimes against humanity) allege that such types of crimes are taking place frequently even now, hence the perpetrators of 1971 should not be tried; or if tried, the present perpetrators should also be brought to justice. It is settled law that crimes against humanity can take place during peacetime even, but a distinction must be made between those crimes and crimes against humanity as widely understood. Crimes against humanity are perpetrated by state officials or agents (for example, in Bangladesh case, the Razakars, Al-Shams, Al-Badrs) systematically and in furtherance of an unlawful policy of denying to political or racial groups (for example, the Bangalee Hindus) the right to life. Geoffrey Robertson, one of the contemporary authorities on the issue, writes that "they (crimes against humanity and crimes having same result) are also distinguished, in practical terms, by the perpetrator's impunity from domestic law enforcement measures: he is punished if at all, only after a change of government or in a foreign or international court (Geoffrey Robertson QC, Crimes Against Humanity: Penguin, 2006)." The misconception can further be clarified by referring to the observation of one of the Nazi war crimes tribunal: "Crimes against humanity… can only come within the purview of this basic code of humanity because the state involved, (read Bangladesh here) owing to indifference, impotency or complicity, has been unable or has refused to halt the crimes and punish the criminals." (United States v. Ohlendorf, 1947). The practices of national and international tribunals mark the gradual recognition of a crime against humanity so repulsive that all states are assumed to have a legal interest in its suppression: they become bound by what the International Court of Justice (ICJ) later in Barcelona Traction Case (1970) termed "an obligation erga omnes" once treaties on the subject and the decisions of important courts are virtually unanimous. Crimes against humanity get extra momentum once they are proved to be widespread and systematic emanations of a policy approved by the perpetrators and their allies.

Genocide
The 1948 Genocide Convention was the first attempt to comprehensively condemn the act of genocide when the Nuremburg judgment still reverberated. Article 1 of the Convention simply states that "genocide, whether committed in time of peace or of war, is a crime under international law." This treaty has been ratified by so many states (including Bangladesh) that it can now be considered a rule of modern customary international law, binding on all states (whether they have ratified the Convention or not) and requiring them to prosecute as genocide. Bangladesh's responsibility necessarily emanates from this conviction and the 1973 International Crimes Tribunal Act is a manifestation of that obligation. As the ICJ explained in its decision in the Reservations to the Convention on Genocide Case (1951): "The origins of the Convention show that it was the intention of the UN to condemn and punish genocide as 'a crime under international law ... involving a denial of the right of existence of entire human groups, a denial which shocks the conscience of mankind and results in great losses to humanity, and which is contrary to moral law and to the spirit and aims of the UN.' As of now, the only acid test of proving an offence of genocide is the intention of the perpetrators to destroy in whole or in part a national ethnical or racial or religious group as such."

International Crimes and Rules against Retrospectivity
The Latin phrase nullen crimen sine lege, meaning conduct however awful is not unlawful unless there is a criminal law against it in force at the time it was committed, is an accepted norm of criminal law. The rationality of the phrase is well established in criminal jurisprudence to protect extraneously motivated prosecutions. Allegation of violation of nullen crimen principle has to be taken cautiously. It appears that the allegation has also been made against the 1973 Act of Bangladesh, but is devoid of substantiality. Exceptions to the nullen crimen principle are accepted in international practice if three conditions are satisfied (i) elements of offences are clear and in line with fundamental principles of criminal justice, (ii) the conduct amounting to offence must be reasonably ascertained and (iii) there must be evidence or at least inference that international community entails a criminal liability for individual perpetrators. These tests are all satisfied in relation to the crimes usually prosecuted in international courts -- genocide, mass murder, widespread and systematic torture, grave breaches of the Geneva Conventions and so on (Geoffrey Robertson QC: 2006). The practice has reached such a stage that the Special Court of Sierra Leone in Child Soldiers Case 1996 approved the retrospectivity of a criminal law punishing recruitment of child soldiers under one's command.

On the same allegation, the constitutionality of the International Crimes (Tribunal) Act 1973 has been raised from different quarters. It needs to be noted that the International Crimes Tribunal Act, 1973 Act is a constitutionally protected legislation (Article 47(3) of Bangladesh Constitution). The constitution derives its validity from the solemn will of the people themselves. Bangladesh secured independence through a liberation war (the war was unjustly imposed) and the proclamation of Bangladesh's independence forms the genesis of the Bangladesh Constitution (B. H. Chowdhury J. in 8th Amendment Case, 1989). So, it is obvious that such a constitution should dedicate provisions to prosecute and punish the international crimes committed during its emergence.

On a plain reading of the combined articles the constitutionality of the 1973 law is upheld. The apex court of the country has rejected a petition challenging the constitutionality of Article 47A. The simple reason is that the language of Article 35 (1) is not attracted by the 1973 Act. Article 35 (1) says that "no person shall be convicted for any offence except for violation of a law in force at the time of the commission of the act charged as an offence." Genocide, arson, murder, rape, extermination were always crimes, and are universally condemned by international law and our national law prevailing prior to 1973. It is not that a new category of crime has been created by the 1973 Act. Nonetheless, the framers of the constitution, as has been asserted by one of them, Barrister M Amir-ul Islam, by way of abundant caution inserted the protective provision of Article 47A. Hence, it is argued that the 1973 Act has not created any new criminal responsibility, rather it has merely criminalised acts already recognised as "crimes" under existing "other legal instruments or any custom or usage having the force of law in Bangladesh." In that case, the definition of "law" becomes very significant. By the twin jus cogens international legal instruments, i.e. The Universal Declaration of Human Rights and the Genocide Convention, states (Bangladesh or Pakistan) were required to punish either domestically or by such international criminal tribunal as may have jurisdiction, acts which were intended to destroy, in whole or in part, a national, ethnic or racial group (for example, the Bangalees in general and Hindu Bangalees in particular), committed by anyone, "whether they are constitutionally responsible rulers, public officials or private individuals." It has to be remembered that making a new criminal responsibility and bringing an already recognised crime within the ambit of law by providing the penalty not 'greater than the recognizing law' are two different matters.

An analogy may be drawn from Australian jurisdiction. The Australian High Court upheld the retrospectivity of a national war crimes law in Polyukhovich Case (1991) and said: "The retrospective operation of the Australian War Crimes Act was authorised 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 1988 (amendment of 1945 Act) on the basis that the Act purported to operate retrospectively. The Court held that the Act was not retrospective in operation because it only criminalised acts which were war crimes under international law as well as "ordinary" crimes under Australian law at the time they were committed. There was a right to exercise universal jurisdiction. The War Crimes Act facilitates the exercise of this right. Justice Dawson observed in the judgment: "[T]he ex post facto creation of war crimes may be seen as justifiable in a way that is not possible with other ex post facto criminal laws ... [T]his justification for a different approach with respect to war crimes is reflected in [Article 15(1)] the International Covenant on Civil and Political Rights to which Australia became signatory on December 18." Bangladesh is also a party to the ICCPR. So, there is hardly any reason why the Bangladesh case should be a different one. The 1973 Act was the first ever written national law to prosecute international crimes, which the scholars have regarded as the foundation stone of modern international criminal law. Denying this truth is to deny the trends and evolution of individual responsibility under international law.

Photo: AMDADUL HAQUE/DRIKNEWS

Procedural safeguards: The 1973 Act in parlance
Government spokespeople have said that internationally accepted procedural safeguards would be maintained in the trial. The Act has provided for an independent investigation agency, and charges can only be brought if credible information against the suspects is found. The 1973 Act not only envisages right of appeal of a person convicted by the tribunal to the Appellate Division of the Supreme Court but also incorporates rights of the accused during trial. The accused may give explanations relevant to the charge, can conduct his own defense or have assistance of counsel, shall have the right to present evidence in support of his defense and to cross-examine any prosecution witness. These are the manifestations of the "due process of law" and "fair trial" and make the 1973 Act more humane, jurisprudentially sound and legally valid and, therefore, an improvement over the Nuremberg Charter -- the foundation stone of modern international criminal justice administration.

Procedural fairness is a much-talked about concern in the ongoing international crimes trial. It is to be remembered that there is no theory of procedural fairness that is universal in its application. Because of the mandate, and political and historical context, each tribunal is distinctive and unique. There is no pretense that the tribunal for international crimes in Bangladesh should apply procedural standards identical to other tribunals. Procedural fairness should not be considered as a rigid benchmark, but as a constructive framework upon which the tribunal can deliver the justice. What is expected is that the international crimes tribunal established in Bangladesh should conform to minimum international standards of procedural fairness to make its credibility visible. It is expected that justice, once there is a procedoure for its delivery, will have its own momentum.

The question of death penalty
The ICC Statute (to which Bangladesh is a party) virtually excludes death penalty from the list of penalties that can be imposed. The most severe penalty, under Article 77, is imprisonment for a maximum of 30 years, while a term for life is designated only when justified by the extreme gravity of the crime and on the individual circumstances of the convicted person. However, the ICC Statute has not totally discarded national practices and contains in Article 80 a provision titled "Non-prejudice to national application of penalties and national laws" and states that "nothing in this Part affects the application by states of penalties prescribed by their national law, nor the law of states which do not provide for penalties prescribed in this Part." In other words, the ICC will not impose the death penalty, but recognises rights of the state parties to provide penalties different from the Statute. This is, argues Dr. Ahmed Ziauddin, an eminent international lawyer of Bangladesh, an example of the pre-eminence of national laws and procedures over the ICC.

It seems that the role of international law, at this stage of development, is to play Portia -- the state may have its pound of flesh, on the condition that it sheds no drop of blood. The trend of the national and international judges is to make executions as difficult as possible. Safeguards have been developed, which limit the applicability of the death penalty in the countries that retain right of appeal, fair trial, mercy petitions, non-mandatory death penalty provisions of law, etc. What is emerging, however, is a rule that executions should not take place in any period during which there is a real political prospect that the death penalty will be abolished. Given the Bangladeshi criminal jurisprudence such will is too remote a possibility. The attitude of the Bangladesh apex court, however, can be deduced from the fact that the court has refused to uphold the constitutionality of a domestic penal law retaining mandatory provisions of death penalty. In contrast, the 1973 Act retains a non-mandatory death penalty provision.

Response to some other concerns
The International Bar Association (IBA) Committee, in a report to the UK Parliament's Human Right Group, has raised some concerns and the segments opposing the Bangladesh Act seem to have heavily relied upon their observation, bypassing the opening remarks of the Committee: "The 1973 legislation, together with the 2009 amending text, provides a system which is broadly compatible with current international standards." It has then commented that the legislation (1973 Act) "appears out of date and behind the more recent practice in international tribunals." Dr. Ahmed Ziauddin has rightly responded to some of the concerns in The Daily Star (April 3), and there is no reason why one would differ with him. The fact that the IBA Committee has found that the 1973 Act is broadly consistent with international standards should alone suffice, as far as the minimum standard required by the international law is concerned. The ICC Statute never denies the primacy of the national law. Article 10 of the Statute explicitly recognises that "nothing in this part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute." The Rome Statute itself envisages that it is not there to limit or prejudice "existing" international law and it has to be noted that the 1973 Act was entirely based on the law that existed then and still remains valid. The ICC Statute has given the definitions of genocide, crimes against humanity, etc., with the opening words "for the purpose of the statute" leaving "existing and evolution" of international law intact.

As to the definition of genocide, it can be said that though new dimensions of genocide like genocidal rape, forced pregnancy, etc., are not specifically mentioned in the 1973 Act as constituent elements of genocide, the use of the words "other crimes under international law" and "not limited to" would not debar a competent and prudent tribunal from accommodating those dimensions under this law. What has to be ensured is a fair trial in a competent court based on evidence coming out of an impartial investigation and meeting minimum international standards. Therefore, the concerns raised by the national and international stakeholders may be discarded.

Second line perpetrators
Because the commanding level soldiers have escaped justice so the lower level perpetrators should also escape is an argument untenable in known canons of jurisprudence. 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, aided and instigated by their native allies (Razakar, Al-Badr, Al-Shams, etc.), committed unprecedented genocide in Bangladesh. On February 22, 1971 the generals in West Pakistan took a decision to crush the Awami League and its supporters. It was recognised from the beginning that a campaign of genocide would be necessary to eradicate the threat. "Kill three million of them," said President Yahya Khan at the February conference, "and the rest will eat out of our hands." On March 25, the genocide was launched.

Collectively known as Razakars, the paramilitary units spread terror throughout the Bengali population. With their local knowledge, the Razakars were an invaluable weapon in the Pakistani army's arsenal. Through an Ordinance (East Pakistan Razakar Ordinance, June 6th 1971) the Razakar, Al-Badr, Al-Shams were declared to be the auxiliary forces of the Pakistan army. The incumbent trial should first try the commanding level leaders of those forces. From Pakistan Government's Ordinance and surrender document of December 16, 1971, they appear to come within the definition of "auxiliary forces" -- a term which the Constitution of Bangladesh also mentions in Article 47 (3).

There are two principal points of charging the members of the auxiliary forces, one for actual commission and another for planning, abetting and conspiracy to commit genocide, crimes against humanity and other crimes under international law. 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, the one in Bangladesh, and the Rwandan one, might not have happened.

The evidence is strongest with respect to Bangladesh genocide, where religious feelings were used to justify the massacre. 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 Muslim opinion by suitable and special means" before the Armenian genocide. By contrast, in Darfur, ethnic cleansing and killings were carried out by paramilitary groups (Janjawiid), mainly in villages inhabited solely by their victims. There is documented evidence of Razakars, Al-Shams, Al-Badr members urging people to "maintain the unity of Pakistan and the sanctity of Islam" and to "exterminate the enemies".

Photo: MUMIT M

The Bangladesh statute 1973 has a provision on the responsibility of superiors but not of subordinates (this was removed after an amendment casting individual responsibility). Different international tribunals have different provisions dealing with the defense of superior orders. For the Sierra Leone Special Court, a superior order is not a defense to a prosecution but it may be pleaded in mitigation of sentence. There are similar provisions for East Timor, the former Yugoslavia and Rwanda, and Lebanon. The International Criminal Court statute, in contrast, provides that superior orders may be a defense where three criteria are met: (a) The person was under a legal obligation to obey orders of the government or the superior in question, (b) the person did not know that the order was unlawful; and (c) the order was not manifestly unlawful. In the case of Bangladesh, it is unlikely that the perpetrators will have the benefit of this defense.

Challenges ahead
It is obvious that in an enfeebled democratic polity like Bangladesh, there will be many challenges to the prosecution of the international crimes suspects. Perhaps the Bosnia and Herzegovina 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 to the Bangladesh situation: (a) political indifference of biased or uncommitted authorities. (b) fear of judges and prosecutors for their personal security, (c) difficulties in locating and securing the attendance of witnesses and defendants, (d) inadequate commitments, structures and procedures, (e) processing of war crimes cases, i.e. problems caused by reluctant, fearful or forgetful witnesses, (f) inadequate witness protection mechanisms, (g) large case loads, (h) inadequate legal resources and poor dissemination of law reports and legal texts and (i) insufficient training on humanitarian law and on necessary skills, such as cross-examination, indictment drafting and witness selection. These are questions of standards as well.

How can we tackle all these problems? The way of avoiding heavy case loads is to choose the cases and charges strategically and constitute more tribunals with proper equipments. The other points are 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. So, conscientious efforts are to be made to face these challenges and bring those responsible for war crimes to justice. Bangladesh has waited far too long to bring the perpetrators of the 1971 crimes to justice. But one advantage of that wait is that many other international tribunals have sprung up in the meantime and gone about their work. Their experience will make the work of the International Crimes Tribunals of Bangladesh easier. International criminal law says that effective prosecution must be ensured by taking measures at the national level and by enhancing international support and cooperation. The submission of the suspects of Bangladesh genocide and crimes against humanity to the "judgment of law" has been a significant tribute of "Power" to the "Reason".

Professor Dr. Mizanur Rahman is Chairman, National Human Rights Commission of Bangladesh.