195 Pak soldiers can still be tried
Pakistan army's 195 officers are morally and legally culpable for the genocide of 1971 and Bangladesh has the moral and legal rights to try them. Pakistan's excuse of the 1974 agreement does not give it reprieve.
This is the last of our series in exposing Pakistan's moral hypocrisy and duplicity about its army's war crimes in Bangladesh in 1971.
The 195 Pakistani soldiers against whom Bangladesh had collected specific evidences of genocide can still be tried in the International Criminal Court in The Hague irrespective of whatever was mentioned in the 1974 Delhi Agreement that Pakistan claims had absolved these criminals from prosecution.
After a long-drawn stressful negotiation over the POWs, Bangladesh finally signed a tripartite agreement in Delhi in April, 1974 in which Bangladesh said "having regard to the appeal of the Prime Minister of Pakistan to the people of Bangladesh to forgive and forget the mistakes of the past," and Bangladesh decided not to proceed with the trials as an act of clemency.
But Bangladesh inked the agreement because Pakistan held 203 Bangladeshi officials hostage for its 195 officers of very high ranks. It also made the repatriation of four lakh Bangladeshis uncertain and put intense international pressure on Bangladesh.
However, this "clemency" has no bearing on the trial of those who committed genocide as the UN High Commissioner for Human Rights report of 2009 titled "International Law and United Nations Policy on Amnesty" said: "Under various sources of international law and UN international policy, amnesties are impermissible if they prevent prosecution of individuals who may be criminally responsible for war crimes and genocide.
An amnesty for genocide would violate the Genocide Convention and Customary international law.
"Amnesties that prevent the prosecution of war crimes ….are inconsistent with the State's obligations under the widely ratified Geneva Convention of 1949 and their 1977 Protocols, the UN said.
Countries which have signed the Geneva Convention are obliged to search out such criminals and try them.
The European Court of Human Rights also made similar observations during the trial of Fred Margus, a Croatian army commander accused of killing Croatian-Serb civilians during the war in the early 1990s.
The Court found that there was a growing tendency in international law to view granting of amnesties in respect of grave breaches of human rights as unacceptable.
Not only that, under long-settled rules of international law, any court may exercise universal jurisdiction over "acts amounting to crimes against humanity, such as widespread or systematic murder, torture, forced disappearance, arbitrary detention, forcible transfer and persecution on political grounds, and heads of state and former heads of state do not enjoy immunity under international law - whether in international or national courts - for crimes under international law, including crimes against humanity and torture."
So, Bangladesh has every right now to go to the international court and demand trial of the Pakistani soldiers who committed all kinds of war crimes including genocide, rape and looting. The Delhi tripartite treaty would not stand in any way to bar it.
Geoffrey Robertson QC, who worked as the president of UN's war crimes court in Sierra Leon, in a report in 2015 titled "REPORT ON THE INTERNATIONAL CRIMES TRIBUNAL OF BANGLADESH" had rightly put the context to the tripartite agreement when he said Bangladesh holocaust came before the world had any will to intervene in faraway countries of which the major powers knew little.
"This was the era of impunity – for mass killings in Indonesia, for General Pinochet's tortures, for the Argentinian Junta's death squads, for Idi Amin's butchery in Uganda, Mugabe's massacres in Matabeleland, for Papa Doc and (for thirty years) for the genocidal behaviour of the Khmer Rouge," he wrote.
It was not until 1994 that the Nuremberg legacy began to be delivered -- for the mass murders by Milošević in the Balkans (the ICTY), and the genocide in Rwanda (the ICTR) and later for Charles Taylor (the UN Special Court in Sierra Leone) and, finally, for Pol Pot's lieutenants in Cambodia.
"Now, with the International Criminal Court (ICC) established with 132 member states, it is broadly accepted that crimes against humanity committed in civil war should receive punishment, however belatedly," Robertson maintained.
Bangladesh can still carry out Bangabandhu Sheikh Mujibur Rahman's original resolution when he said, "How can you expect me to abandon it? Three million people were cold-bloodedly murdered. Two hundred thousand girls have been raped by the Pakistan army. Ten million people had to migrate to India and another 15 million moved from place to place out of fear. The world should know what has happened" (New York Times, July 21, 1972).
And why an amnesty cannot be used to bar trial for genocides had been eloquently conjured up in 1764 by Cesare Beccaria, an Italian criminologist, jurist, philosopher, and politician, who is widely considered as the most talented jurist and one of the greatest thinkers of the Age of Enlightenment.
He said "The conviction of finding nowhere a span of earth real crimes were pardoned might be the most efficacious way of preventing their occurrence."
So Bangladesh has every moral right to hunt them down and drag them to trial.