Getting the trials right

THE issue of the trial of the perpetrators of genocide, crimes against humanity and war crimes committed during our War of Liberation, has been raised again. The people, along with the younger generation, responded to the call of the Sector Commanders' Forum and other organisations which mobilised the social forces in favour of the trial.
Some conditions were created during the tenure of the immediate past caretaker government (CTG), which rejuvenated the nationwide movement for the trial. For the first time, the international community seemed ready to listen to our cry for justice. The UN Secretary-General Ban Ki-moon spoke in appreciation of the issue. However, the CTG decided to leave the issue to the elected government.
Awami League and its allies pledged to prosecute the accused of the war crimes, if voted to power. And the people overwhelmingly voted them to power. Many believe that one of the reasons for the landslide victory was their pledge for the trial, which their rivals did not make.
The government has already adopted a resolution in the Parliament to prosecute the accused. This is a step in the right direction. Now the question is, how can the trials be made transparent, credible and acceptable at home and abroad?
It will not be easy to hold the trial. Time has obliterated many circumstances and conditions for the trial. However, the nation seems ready to redeem, and the comity of nations ready to support.
Experts as well as the concerned members of the public have spoken of different ways of starting the prosecution of the accused. There is no dearth of laws. However, the choice of law and forum in this case is very crucial, for the crimes were committed long ago. Let us consider the options.
First, the above crimes are international crimes and hence subject to the jurisdiction of any appropriate court of any state under the concept of universal jurisdiction.
Second, the accused can be prosecuted by the appropriate domestic courts of Bangladesh on nationality or territoriality principle under domestic as well as international criminal law.
Third, the accused can be prosecuted in a UN sponsored international tribunal, as is being done in former Yugoslavia and in Rwanda.
Fourth, a UN sponsored and supported special domestic tribunal can also prosecute, as is presently being done in Kampuchea.
Fifth, a special domestic tribunal formed under special domestic law, preferably with assistance from the UN, is another option.
In choosing the right way of prosecuting the crimes, the factors that need to be taken into consideration are:
-Although the prosecution of the criminal offences is never time-barred, the commission of the above crimes dates back about forty years.
-There are international as well as domestic forces which will still try to frustrate any move for prosecution.
-The accused are of both foreign and domestic origins, and the apprehension of the foreign based accused will require the cooperation of the international community.
-Strong UN and international support will be necessary to obviate any regional or international pressure not to prosecute.
Of the different ways of prosecution, one that envisages creation of special tribunals under special domestic law appears to be the most effective. Bangladesh adopted the International Crimes (Tribunal) Act in 1973, which incorporated all relevant norms, values and experiences that the world community had accumulated.
It was mainly designed on the Nuremberg and Tokyo war crime tribunal statutes of 1946. However, the tribunals were not constituted.
It is significant that the Act was preceded by the First Amendment of the Constitution, which provided for saving such laws to allow special procedure and the rules of evidence to deal with criminal acts committed during a war. Application of traditional rules of procedure and evidence in such cases may fail to provide justice.
Under the circumstances, prosecution under existing criminal procedural and evidence law, not under the 1973 Act, could be self-defeating. As an idea, formation of an international criminal tribunal is good.
However, in the presence of the 1973 Act, it will not be necessary, and creating an international tribunal for prosecuting crimes committed long ago may take a long time. In the equation of international politics, the move might even be frustrated.
The best way is to provide for prosecution by special tribunals under the 1973 Act, with support from the UN. This support can be a UN resolution, either in the General Assembly or in the Security Council, to underline the need to prosecute the perpetrators.
On Bangladesh's request, the UN can provide legal assistance to national prosecution efforts. It can also monitor the procedures followed to ensure transparency and fairness. It can ensure that law and justice, not politics or feelings of revenge, prevail.
There is an unexpressed fear on the part of Bangladesh that some countries with which she has good relations and on whom she depends for many things may not be supportive of the idea of prosecution.
So it ought to be made clear that it is neither politics, nor ideology, nor any country that would be under focus of the prosecution, but specific crimes for which political ideology or country would not be held responsible. If the crimes had been committed in the name of any political ideology or religion, then that ideology or religion has been misused, and hence not to be blamed.
Prosecution and possible conviction of the accused will show that international crimes will not go unpunished, and act as a deterrent against potential criminals. For Bangladesh, it is more important. With the heavy legal and moral burden of non-trial historically hanging on her, and with innumerable victims of the crimes still waiting for justice, our nation will not progress, as it ought to.

Dr. M. Shah Alam is Professor, Faculty of Law, University of Chittagong.