By Prof. Mizanur Rahman
December 10, 2011
IT is not that Bangladesh only owes the responsibility to try the genocidal atrocities of 1971. The international community was also under an obligation to bring the alleged perpetrators to the altar of justice. One has much reason to interpret that failure to bring the perpetrators, military personnel or their aides, of human rights atrocities in Bangladesh during the 1971 liberation war, was the starting point of failure to preventing further genocidal atrocities in the global context. The wanton killings in Cambodia in the 70s, massacres in Serbia, atrocities in Rwanda were examples of these.
However, later on the international community witnessed several international and mixed tribunals to suppress international crimes. The later developments of jurisprudence in prosecuting atrocities have increased the possibility to try the criminals under national jurisdiction.
Given the limited number of international criminal tribunals and their scarce resources, war crimes prosecution by national tribunals have received prominence. Bangladesh was the pioneer in formulating first national "international crimes" law in the history of the world back in 1973, the spirit of which was later inculcated in the ICC Statute, 1998. It may set an example of effective national prosecution of international 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 Tribunal.
The establishment of International Crimes Tribunal in Bangladesh is a legitimate assertion of its authority to affect its legal interests and law-making activities, judicial processes or enforcement means. National and Territorial 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. 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. 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.
The tribunal has started to take cognizance of crimes of international nature with particular emphasis of allegation of crimes against humanity. Crimes against humanity need not be newly defined, as has been recently demanded by some political opponents of the ongoing trial. It is trite, and therefore true, to say that 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 the 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. The ambit and scope of crimes against humanity can only be improved based the definition prescribed by Nuremburg Tribunal, the ICC Statue and the like.
Crimes against humanity are perpetrated by state officials or agents (for example, in the case of Bangladesh, the razakars, al-shams, al-badrs) systematically and in furtherance of an unlawful policy of denying political or racial group the right to life or physical integrity. The Nazi war crimes tribunal (1947) observes: "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."
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."
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.
The Supreme Court of Bangladesh rightly rejected a petition challenging the constitutionality of Article 47A providing safeguard of war crimes legislation. The simple reason is that the language of Article 35 (1) which provides safeguard against retrospectivity of law, is not attracted by the 1973 Act. Article 35 (1) says that, "No person shall be convicted to 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 a crime and universally condemned by international law and our national law prevailing prior to 1973. It is not that a new category of crime was created by the 1973 Act. By way of abundant caution the fathers of the constitution inserted the protective provision of Article 47 A. Hence, it is argued that the 1973 Act has not created any new criminal responsibility; rather it has merely criminalised acts already recognised "crimes" under existing "other legal instruments or any custom or usage having the force of law in Bangladesh."
It is to be reminded 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 recognising law" are two different matters. 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.
Procedural fairness is a much talked about concern in the ongoing international crimes trial. The scheme of the 1973 Act has laid down certain procedural fairness:
i) Provision for an independent investigation agency, charges can only be bought if credible information against the suspects is found;
ii) Envisages right of appeal of a person convicted by the tribunal to the Appellate Division of the Supreme Court;
iii) The accused may give explanation relevant to the charge, can conduct his own defence or have the right to be represented by counsel; and
iv) The accused shall have the right to present evidence in support of his defence 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 founding stone of modern international criminal justice administration.
Media access to the Tribunal information, sympathy to the accused ailing condition, allowing to challenge the jurisdiction of the tribunal, placing demands before the tribunal, allowing a move for a non-confidence motion against the tribunal chairman -- are some glaring examples of procedural standards already followed by the Tribunal.
Procedural fairness entails no universal shape. International criminal law presupposes a minimum standard, this is why, and even the international standard is frequently evolving. Because of the given mandate, historical texture, social structure each tribunal becomes distinctive and unique. While we are talking about procedural fairness, we need to understand that we should not talk about a utopian procedural fairness which cannot be complied with. It should not appear as a rigid bench mark, but a constructive framework upon which the tribunal can deliver the justice.
It is evident that justice, once there is a procedure of its delivery, is prone to have its own momentum. The call for application of national penal law to "international crimes" by a political party spokesman is based on a nullity. The call implies no wisdom about the nature and prosecution of human rights atrocities like war crimes, genocide and crimes against humanity. The demand to denounce the tribunal and follow almost abstract standard of procedure can only be paraphrased as "let them set free."
The writer is Chairman, National Human Rights Commission
Source: The Daily Star. Dhaka