Trial of war criminals: What needs to be done?
Barrister Harun ur Rashid
Syed Zakir Hossain
Crime, although committed against a person, is an offence against law and order of a State and that is why it constitutes a crime against a State and State prosecutors (public prosecutors) pursue a criminal case.
War crimes, genocide and crimes against humanity are offences against humankind because it denigrates human dignity. That is why every country has an obligation under international law to try individuals who allegedly perpetrated such crimes, irrespective of the fact whether such crimes were committed in that State or not.
A person who allegedly commits a crime can always be charged until that person is alive. Unlike civil litigation or disputes, length of time does not affect crime. In other words, it does not have statutory limitation. That is why those who allegedly committed genocide, crimes against humanity or war crimes (grave breaches of the 1949 Geneva Conventions) during the Nazi Germany more than 60 years ago are being arrested and tried. In Cambodia, Khmer Rouge leaders who alleged committed crimes against humanity and turned the country into 'killing fields' during 1975-79 are being put on trial after 30 years by a Tribunal with the backing of the UN.
On 3rd December, 1973, a resolution of the General Assembly (Resolution number 3074) was adopted underscoring the obligations of member-States of the UN in the detention, arrest, extradition and punishment of war crimes and crimes against humanity. Bangladesh is a member of the UN and it is a duty of Bangladesh to hold trials for such crimes.
Given the above background, on 29th January 2009, Bangladesh Parliament adopted a resolution to try war criminals. On 25th March, the government decided to try war criminals under the 1973 International Crimes (Tribunals) Act and investigation as claimed by the government had already begun.
Scope of the 1973 Act
The International Crimes (Tribunals) Act 1973 has been protected by an amendment of the Constitution of Bangladesh ( Article 47A) so that the Supreme Court could not term the Act unconstitutional for being counter to any of the fundamental rights.
Section 3 of the Act has defined the crimes against humanity, anti-peace crimes, genocide, war crimes, breaches of rules of the Geneva Conventions of 1949 during armed conflicts, any crime under international law. It also embraces crimes such as murder, torture, ousting any civilian from Bangladesh territory, considering him a slave or with any other objective, looting personal or public property and damage to towns and villages in the absence of military necessity.
Furthermore an attempt to commit, instigate, and conspire to commit and conniving in not preventing such crimes will be considered as crimes under the Act.
The law contains provisions of constituting tribunals, (each tribunal consisting of a chairperson and not less two and not more than four), appointment of chief prosecutor and prosecutors, establishment of an Agency for the purpose of investigation into such crimes, punishment and giving legal aid to accused. The law also recognises the right of the accused to appeal against the verdict of the Tribunal to the Appellate Division of the Supreme Court .
The law makes it clear that the proceedings of the Tribunal shall be in public (Section 10 of the Act). This is for the sake of transparency, fairness and justice. Justice must not only be done but seen to be done.
Does the 1973 Act need review?
The Act was enacted in 1973. In the 90s, Bangladesh has become party to many international human rights conventions/treaties. Some legal experts argue that taking into acccount of the provisions of the 1966 International Covenant on Civil and Political Rights, in particular Articles 9 (arrest and speedy trial), and Articles 14 and 15 ( the right of the accused), Sections 11 (power of the Tribunal), Section 17 (right of the accused) and Section 21 (right of appeal) may be revisited so as to ensure that they conform with provisions of international human rights conventions/treaties.
The Act lays down the rules of evidence for the Tribunal which are much more relaxed and not bound by technical rules of evidence than those in the Evidence Act of 1872. This is perhaps because of the fact that occurrences of commission of war crimes take place during armed conflict or in an abnormal situation where evidentiary materials are found to be thin.
It is argued the aforesaid provisions of the Act need to be reviewed in the light of the provisions of the UN human rights conventions/treaties to which Bangladesh is a party.
It is suggested that Investigating Agency or Fact-Finding Committee is to be set up whose task will be to gather all materials, documents in support of the evidence to be submitted to the Tribunal. The materials may be collected from within the country or abroad. In this connection, the UN can assist the Fact-Finding committee on what kind of evidentiary materials are required for the trial.
In overseas during the Liberation War, international community was involved in reporting and monitoring the situation and there are many materials abroad such as possessing materials of evidentiary values resting in broadcast in radios, human rights organisations, university centres of genocide and human rights (for example Tutgers University and Yale University in the USA) and individuals.
In the case of current on-going Camobodian war crime trial, some crucial evidentiary documents that once thought missing were reportedly discovered by the Yale University Genocide Research Centre. Bangladesh must explore such possibilities to gather and collate as much materials as possible from abroad for trial.
International community and the proposed trial
War crimes trial has international dimension. It has been a sensitive issue for many authoritarian developing countries because some of their heads of State or Governments adopt systematic and widespread state-sponsored oppreesive and repressive measures against civilian population and political opponents and therefore they think they could be indicted by the Hague-based UN International Criminal Court.
It is obvious that there are strong reservations of many countries for holding trials for such crimes. For example, about 30 countries that abstained from voting in the UN General Assembly when the Cambodian trial was put to vote. All African and Arab countries object to the issue of warrant of arrest on 4th March to the Sudanese President by the International Criminal Court on charges of crimes against humanity in Darfur region of Sudan.
The government may seriously consider preparing a White Paper on the reasons for holding trials for such horrible and senseless crimes committed during the Liberation War of 1971.
A copy of the White Paper may be distributed to all foreign resident diplomatic missions in Dhaka. Furthermore, the government may embark on diplomatic efforts through our missions overseas to explain the need and the popular demand for this trial to cross section of public including civil society and media abroad, eliminating possible mis-perception that the trial is a policy of revenge and retaliation.
To demonstrate the commitment to trial of war crimes, it is appropriate that Bangladesh ratifies the Statute of International Criminal Court of 1998 (Bangladesh signed it) and the ratification will show to the international community Bangladesh's firm resolve that war crimes must not and cannot escape unpunished.
Crimes against humanity, war crimes and genocide are the gravest crimes in international law and are condemned by all UN members. The effective punishment is an important element in the prevention and recurrence of such odious crimes and for protection of the inherent dignity of human person.
The writer is former Bangladesh Ambassador to the UN, Geneva.