Bangladesh International War Crimes Tribunal: X-rayed (Part-I)

The war crimes tribunal in Bangladesh, established to try those who committed atrocities is under fire for its hanging of Jamaat–e-Islami members

Bangladesh International War Crimes Tribunal: X-rayed (Part-I)

AKM Sirajul Arifin-India

The war crimes tribunal of Bangladesh, which was set up to try those responsible for atrocities committed during the country’s 1971 liberation war with Pakistan is facing increased scrutiny by the international community. Serious concerns have been raised, particularly regarding its statute, which contains several provisions that are incompatible with the international law and international fair trial standards and also with the constitution of Bangladesh. The Rules of Procedure it adopted are also highly problematic in terms of international human rights law.

Most of the accused under trial and finally convicted are belong to Bangladesh Jamaat–e-Islami (BJI). During the last three years five top most leader of BJI have been hanged including its Ameer (President) Maulana Motiur Rahaman Nizami and Secretary General Ali Ahsan Muhammad Muzahid. It also hanged Salauddin Quader Choudhury of Bangladesh Nationalist Party (BNP). The last one among them was Mir Qasim Ali of BJI. He was executed on 3rd September at 10.30 pm.

But the historical records tell us another fact. Rising malcontent and cultural nationalism in the then East Pakistan culminated in a violent crackdown by the Government forces on March 25, 1971, known as Operation Searchlight. All major cities in East Pakistan were seized, political and military oppositions eliminated, and foreign journalists deported. A number of pro-liberation intellectuals were executed. Although no comprehensive accounting was ever done. Many large-scale mass graves had been uncovered around the country. The conflict came to an end with the Indian Military action on December 3, 1971. whereby the Pakistani forces were defeated in a matter of days, resulting in the surrender of 93,000 Pakistani troops.

East Pakistan declared its independence shortly thereafter and Sheikh Mujibur Rahman became Bangladesh’s first Prime Minister. The Pakistani army had the support of many of East Pakistan’s political parties. There were some pro-army civil groups like Al Badr, Al-Shams and Razakar which were created by the Pakistani Army. According to Hasina Government, it is trying those collaborators, not the main culprits of the Pakistani Army.

A SETTLED ISSUE

The “Dalal Aain” (known as ‘The Bangladesh Collaborators Special Tribunals Order, 1972’) was imposed by the first Awami League government headed by Sk. Mujibur Rahman just after the independence of Bangladesh on January 24, 1972. More than ten millions people were arrested under this law. Among them 37,471 persons were accused but due to lack of proper evidence 34,623 of them were acquitted without any charge sheet. Charge sheets were filed only against 2,848 accused. After a short trial 752 accused were convicted and the rest 2,096 were set free.

The interesting fact is that after a long process of trial, there was not a single person from Bangladesh Jamaat-e-Islami among the finally convicted 752 persons. Apart from this, those of 752 convicts who were not convicted for killing, rape, torching houses and plundering had been released by a general amnesty by Sk Mujibur Rahaman on November 30, 1973. Later on, those 195 Pakistani army officers who were directly involved in mass killing were also given amnesty by Sk. Mujibur Rahaman. So the issue of war crime was settled by Sk Mujibur Rahaman himself.

THE INTERNATIONAL CRIMES (TRIBUNALS) ACT

The International Crimes (Tribunals) Act was drafted in 1973. The Act was later marginally amended in 2009. The Tribunal was established with a controversial amendment to the Constitution of Bangladesh in 1973. The amendment provides that a person charged with genocide, crimes against humanity, war crimes or other crimes under international law cannot challenge any law providing for their prosecution and punishment. It is inconsistent with any of the provisions of the Constitution. That means the Act cannot be challenged on the basis that it violates basic constitutional rights. The constitutional amendment is fundamentally at odds with the rules of law, which ensures equal treatment of all persons before the law.

Two leaders of Bangladesh Jamaat-e-Islami, Abdul Quader Mollah and Mohammad Kamaruzzaman sought to challenge this amendment along with some sections of the Act, arguing that they were inconsistent with the Constitution. Their challenge was plainly rejected by the Bangladesh High Court on August 23, 2010.

In an interview with the Crimes of War Project, Professor Suzannah Linton of Hong Kong University welcomed the “important international precedent that is being set by Bangladesh in creating the ICT. But, she cautioned that the legislation as it stands is now well out of date and runs contrary to its international obligations and the wider objective of the international criminal justice movement, which is not to bring about revenge, but justice.”

I have to say, being as objective as I can be, that the tribunal that’s being setup in Bangladesh has all the hallmarks of a political show trial, and I will explain why, something that really belongs back in Stalin’s era in the 1930s rather than something in the modern 21 century.” Barrister John Cammegh expressed such opinion while he talked on Bangladesh International Crimes Tribunal at the American Society of International Law (ASIL) in Washington on May 19, 2011.

Mr. Cammegh also added that the tribunal needs international assistance and counsel whether in court or behind the scene. Obviously we would love to be in court to do our jobs, but it needs international experts’ assistance because this trial claims to be trying cases according to international law. It needs provision for training, not just for lawyers, but for the judges who are equally, and I say this with all respect, uneducated in terms of the international concepts or legal concepts that the act appears to be introducing. It requires monitoring. Why? Not as a disrespectful blow to the institution, but because all tribunals have to be monitored.

WHETHER THE KILLING IN 1971 WAS GENOCIDE OR NOT?

The events of 1971 have been described as “genocide” within Bangladesh and in several international publications. Article 2 of the 1948 Genocide Convention, which reflects customary international law, defines genocide as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group.” It does not include “political groups,” although that term was added to the definition of genocide under the 1973 Act of Bangladesh.


Killing members of a political group as such is not a crime of genocide under international law. The problem with the Bangladeshi addition of political groups is that this was one of the groups deliberately excluded from the ambit of the crime of genocide set out in the Genocide Convention. The Government that was engaged in the drafting process did not want its own people to be tried for genocide for the very common practice of targeting their political enemies.”

The International Commission of Jurists (ICJ), when it published its investigation into the events in 1971, stated that “to prevent a nation from attaining political autonomy does not constitute genocide. The intention must be to destroy in whole or in part the people as such. It can hardly be suggested that the intention was to destroy the Bengali people.”

Professor Linton, as well as the War Crimes Committee of the International Bar Association, has pointed out that the definition of crimes against humanity in the 1973 Act misses important elements of the more modern definition, namely, the widespread or systematic nature of the attacks against the civilian population. In addition, the Act does not require that the offending actions be committed “with knowledge” of the widespread or systematic attack.

The eight grave breaches of the Geneva Conventions are: (1) willful killing; (2) Torture or inhuman treatment, including biological experiments; (3) Willfully causing great suffering or serious injury to body or health; (4) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; (5) Compelling a prisoner of war or a civilian to serve in the forces of a hostile power; (6) Willfully depriving a prisoner of war or a civilian of the rights of a fair and regular trial; (7) Unlawful deportation or transfer or unlawful confinement of a civilian and (8) taking civilians as hostages.

The Grave Breaches provisions, as incorporated into the Act, will only come into play if it can be established that an international armed conflict existed at the time of the crime. The early stages of the conflict can be characterized as “Common Article-3” situation.

Bangladesh’s war crimes tribunal is sullying its judicial and political systems. Now consider the trials under way at the Tribunal in Dhaka of Bangladesh. Innocent persons are being tried and executed for accusation of dreadful crimes committed 44 years ago, during Bangladesh’s independence war from Pakistan, in 1971.

Now it is no secret that the government has interfered in the court’s deliberations. Public discussion of the proceedings has been restricted. The number of defence witnesses was curtailed. One was even kidnapped on the stairs of the court and later on he was reportedly found in Dum Dum Central Jail in Kolkata, India. In one case, the presiding judge resigned and the death sentence was penned by three men who had not heard all the witnesses. These are profound judicial failings in Bangladesh.

As many of the defence lawyers were arrested and taken to remand several times without any charges by this measure, the trials have been an utter failure. The detainees were arbitrarily arrested on other matters and then rearrested once in custody, for things to do with 1971. The detainees haven’t been served with a single piece of paper detailing what it is that they’re likely to have to contest later till one year after their arrest.



Güncelleme Tarihi: 16 Eylül 2016, 09:11
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