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. Moreover, the trial of the war criminals is a demand of humanity and human civilization. If injustice and war crimes are allowed to go without fair and proper trials, there will remain question regarding the continuity, integrity and humanist elements of human civilization and its existence. The recent upsurge, however, poses more questions than answers. Bangladesh earned its long-cherished independence following a nine-month battle with West Pakistan . The mainstream discourse on this battle is very long on narratives, but short on facts. The narratives are so deeply rooted and embedded in the mainstream political and social discourse that search for facts is sometimes regarded as a crime. Many facts on the battle therefore remain as fictions. One of the conspicuous fictions is “war criminals.”
Definitions of War Criminal:
Article 147 of the Fourth Geneva Convention defines war crimes as: “Willful killing, torture or inhuman treatment, including… willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile power, or willfully depriving a protected person of the rights of fair and regular trial, …taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”At the heart of the concept of war crimes is the idea that an individual can be held responsible for the actions of a country or that nation’s soldiers. Genocide, crimes against humanity, mistreatment of civilians or combatants during war can all fall under the category of war crimes. Genocide is the most severe of these crimes.
The body of laws that define a war crime are the Geneva Conventions and the statutes of the International Criminal Tribunal in The Hague (ICTY).
Method used in this thesis:
Research reports and publications of various organizations working with the trial of war crimes occurred in 1971, journals, reports, booklets, newsletters, photographs, and newspaper clippings have been reviewed. Existing information have also been extracted from various aspects to enable readers to understand this national issue relating to trial of war crimes from various perspectives. Several key informants have been interviewed to add additional perspective on the trial of war crimes. Some similar trials conducted throughout the world have been given as reference.
Background of War Crime Trial
History of crimes throughout the world
War Crimes Trials, trials of persons charged with criminal violation of the laws and customs of war and related principles of international law. The first war crimes trials in modern times were held after World War II (1939-1945) by the victorious Allied nations to prosecute German and Japanese war criminals. In 1993 and 1994 the United Nations (UN) established war crimes tribunals to prosecute those who committed crimes during the civil wars in the former Yugoslavia and in Rwanda. In 2002 the UN and the government of Sierra Leone established a jointly administered war crimes tribunal to prosecute atrocities committed during Sierra Leone’s civil war. A similar court has been proposed to prosecute war crimes committed in Cambodia during the 1970s.
In July 1998 UN delegates approved a statute creating a permanent International Criminal Court (ICC) to try people accused of genocide (systematic extermination of a group), war crimes, crimes against humanity, and crimes of aggression. The ICC was designed to replace ad hoc tribunals of limited jurisdiction, such as those created to address the conflicts in the former Yugoslavia and in Rwanda. The ICC, with headquarters in The Hague, The Netherlands, officially came into being on July 1, 2002.
The most important war crimes trials following World War II were held in Nürnberg, Germany, under the authority of two legal instruments. One, the so-called London Agreement, was signed by representatives of the United States, the United Kingdom, France, and the Union of Soviet Socialist Republics (USSR) in London on August 8, 1945; the other, Law No. 10, was issued by the Allied Control Council in Berlin on December 20, 1945.
The London Agreement provided for the establishment of the International Military Tribunal, composed of one judge and one alternate judge from each of the signatory nations, to try war criminals. Under the London Agreement, the crimes charged against defendants fell into three general categories: (1) crimes against peace—that is, crimes involving the planning, initiating, and waging of aggressive war; (2) war crimes—that is, violations of the laws and customs of war as embodied in the conventions adopted at the Hague Conferences (international peace conferences of 1899 and 1904); and (3) crimes against humanity, such as the extermination of racial, ethnic, and religious groups and other large-scale atrocities against civilians. On October 18, 1945, the chief prosecutors lodged an indictment with the tribunal charging 24 individuals with a variety of crimes and atrocities, including the deliberate instigation of aggressive wars, extermination of racial and religious groups, murder and mistreatment of prisoners of war, and the murder, mistreatment, and deportation to slave labor of hundreds of thousands of inhabitants of countries occupied by Germany during the war.
Among the accused were Nationalist Socialist leaders Hermann Göring and Rudolf Hess, diplomat Joachim von Ribbentrop, munitions maker Gustav Krupp von Bohlen und Halbach, Field Marshal Wilhelm Keitel, Grand Admiral Erich Raeder, and 18 other military leaders and civilian officials. Seven organizations that formed part of the basic structure of the Nazi government were also charged as criminal. These organizations included the (Schutzstaffel, German for “Defense Corps”), the Gestapo (Geheime Staatspolizei, “Secret State Police”), the SA (Sturmabteilung, “Storm Troops”), and the General Staff and High Command of the German armed forces. The trial began on November 20, 1945. Much of the evidence submitted by the prosecution consisted of original military, diplomatic, and other government documents that fell into the hands of the Allied forces after the collapse of the German government.
Atrocities occurred in Bangladesh, 1971
Beginning with the start of OperationSearchlight on 25 March 1971 and continuing throughout the BangladeshLiberationWar, there were widespread violations of humanrights in EastPakistan (now Bangladesh) perpetrated by the PakistanArmy with support from local political and religious militias. Time reported a high U.S. official as saying “It is the most incredible, calculated thing since the days of the Nazis in Poland.” Genocide is the term that is used to describe the event in almost every major publication and newspaper in Bangladesh. Apart from that all international publications on genocide and human rights abuses classify the atrocities of 1971 as an act of genocide by West Pakistan. On 16 December 2002, the GeorgeWashingtonUniversity’s NationalSecurityArchive published a collection of declassified documents, consisting mostly of communications between US embassy officials and USIS centers in Dhaka and India, and officials in Washington DC. These documents show that US officials working in diplomatic institutions within Bangladesh used the terms selective genocide and genocide (see TheBloodTelegram) to describe events they had knowledge of at the time. The complete chronology of events as reported to Nixon administration can be found on Department of State website. Telegrams from Nixon archives released by UnitedStatesDepartmentofState detail some of the atrocities.
Bangladeshi authorities claim that 3 million people were killed, while the HamoodurRahmanCommission, an official Pakistan Government investigation, put the figure as low as 26,000 civilian casualties. The international media and reference books in English have also published figures which vary greatly from 200,000 to 3,000,000 for Bangladesh as a whole. A further eight to ten million people fled the country to seek safety in India. A large section of the intellectual community of Bangladesh were murdered, mostly by the Al-Shams and Al-Badr forces, at the instruction of the Pakistani Army. There are many mass graves in Bangladesh, and more are continually being discovered (such as one in an old well near a mosque in Dhaka, located in the non-Bengali region of the city, which was discovered in August 1999). The first night of war on Bengalis, which is documented in telegrams from the American Consulate in Dhaka to the United States State Department, saw indiscriminate killings of students of Dhaka University and other civilians. Numerous women were tortured, raped and killed during the war. The exact numbers are not known and are a subject of debate. Bangladeshi sources cite a figure of 200,000 women raped, giving birth to thousands of war-babies. The Pakistan Army also kept numerous Bengali women as sex-slaves inside the Dhaka Cantonment. Most of the girls were captured from DhakaUniversity and private homes. There are reports of sectarian violence not only perpetrated and encouraged by the Pakistani army, but also by Bengali nationalists against non-Bengali minorities, especially Biharis.
Trial Procedure of War Criminals
Who were war criminals
After beginning the Bangladesh liberation war, Pakistani military forces required military support who wants still to live with Pakistan as well as non-bangali muhajirs in order to abolish the independence fighters of Bangladesh.
There were three types of war criminals:
- Razakars: Refugees who were came from others parts of India, during separation of India and Pakistan, and settled in East Pakistan
- Al-badar: Bengali muslim student from colleges, universities and madrasah ,who were loyal to jamat-e-islami
- Al-shams: Bengali muslim students, teachers, and supporters of Islamic parties other than jamat-e-islami.these smaller parties included in Nejam-e-islami and various functions of Muslim league
Setting up of a Tribunal under the Crimes Act, 1973
The first one is to set up a tribunal, appointment of prosecutors and setting up of investigation agency. This is the easiest part to do by the government. The law provides to file a complaint to the investigation agency and unless the investigation agency is set up, no one lodge a complaint under this law. However relatives can filed a FIR for a murder case against individuals under the country’s Penal Code and in fact it was reported on December 15 1993, a murder case lodged against some people known as war criminals in a magistrate’s court. The result of the case is not known or reported. The reality is that the tribunal cannot work until prosecutors submit the charges to the Tribunal.
but the prosecutors can only submit a formal charge until the Investigation officers complete their investigation and a prima facie case has been made against a person. In this regard,The Government may, by notification in the official Gazette, set up one or more Tribunals, each consisting of a Chairman and not less than two and not more than four other members. Any person who is or is qualified to be a Judge of the Supreme Court of Bangladesh or has been a Judge of any High Court or Supreme Court which at any time was in existence in the territory of Bangladesh or who is qualified to be a member of General Court Martial under any service law of Bangladesh may be appointed as a Chairman or member of a Tribunal. The permanent seat of a Tribunal shall be in Dhaka: Provided that a Tribunal may hold its sittings at such other place or places as it deems fit. If any member of a Tribunal dies or is, due to illness or any other reason, unable to continue to perform his functions, the Government may,
by notification in the official Gazette, declare the office of such member to be vacant and appoint thereto another person qualified to hold the office. If, in the course of a trial, any one of the members of a Tribunal is, for any reason, unable to attend any sitting thereof, the trial may continue before the other members.A Tribunal shall not, merely by reason of any change in its membership or the absence of any member thereof from any sitting, be bound to recall and re-hear any witness who has already given any evidence and may act on the evidence already given or produced before it.
If, upon any matter requiring the decision of a Tribunal, there is a difference of opinion among its members, the opinion of the majority shall prevail and the decision of the Tribunal shall be expressed in terms of the views of the majority. Neither the constitution of a Tribunal nor the appointment of its Chairman or members shall be challenged by the prosecution or by the accused persons or their counsel.
Procedure of trial
1. The following procedure shall be followed at a trial before a Tribunal, namely:-
(a) the charge shall be read out;
(b) the Tribunal shall ask each accused person whether he pleads guilty or not-guilty;
(c) if the accused person pleads guilty, the Tribunal shall record the plea, and may, in its discretion, convict him thereon;
(d) the prosecution shall make an opening statement;
(e) the witnesses for the prosecution shall be examined, the defence may cross-examine such witnesses and the prosecution may re-examine them;
(f) the witnesses for the defence, if any, shall be examined, the prosecution may cross-examine such witnesses and the defence may re-examine them;
(g) the Tribunal may, in its discretion, permit the party which calls a witness to put any question to him which might be put in cross-examination by the adverse party;
(h) the Tribunal may, in order to discover or obtain proof of relevant facts, ask any witness any question it pleases, in any form and at any time about any fact; and may order production of any document or thing or summon any witness, and neither the prosecution nor the defence shall be entitled either to make any objection to any such question or order or, without the leave of the Tribunal, to cross-examine any witness upon any answer given in reply to any such question;
(i) the prosecution shall first sum up its case, and thereafter the defence shall sum up its case:
Provided that if any witness is examined by the defence, the prosecution shall have the right to sum up its case after the defence has done so;
(j) the Tribunal shall deliver its judgement and pronounce its verdict.
(2) All proceedings before the Tribunal shall be in English.
(3) Any accused person or witness who is unable to express himself in, or does not understand, English may be provided the assistance of an interpreter.
(4) The proceedings of the Tribunal shall be in public:
Provided that the Tribunal may, if it thinks fit, take proceedings in camera.
Overview of War Criminal Trials in Bangladesh and Other Countries
The initiatives of the present democratic Government
Bangladesh may request the International Criminal Court to put on trial Pakistani forces for alleged war crimes. The alleged perpetrators of the atrocities among the Pakistani forces were not in Bangladesh now, so Dhaka needed international assistance to bring them to justice, he added. ‘And we will request the world body to bring them to justice as many of them are guilty of war crimes,’ said Tajul, a war veteran. He said the government was going to appoint a body to reinvestigate the crimes. The Hague-based International Criminal Court, which came into being in 2002, is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression. An inter-ministry meeting comprising representatives from Bangladesh’s ministry of law, home affairs ministry, foreign affairs ministry and liberation war affairs ministry, was held some days ago to examine the best possible way to bring war criminals to justice. More than 80,000 officers and soldiers of the Pakistani army and the paramilitary and police forces and 13,000 civilians were repatriated from Bangladesh after their surrender to the allied forces led by the Indian army on December 16, 1971.
In a goodwill gesture, India – which had given all-out support to Bangladesh during the war – unilaterally decided not to try the prisoners of war for war crimes and released them under the July 3, 1972 Simla Agreement with Pakistan.
Bangladesh was not a party to the agreement.
The state minister said that the government would do everything possible to bring the war criminals, whoever they may be, to justice in a transparent manner so that no one could question the fairness of the trials.
Bangladesh has formally sought assistance from the United Nations to ensure that investigation and prosecution of war criminals can take place in conformity with international standards.
It also requested the UN to send a panel of experts to assist Bangladeshi authorities, which are intending to try the criminals under the International Crimes Tribunal Act of 1973, a law Bangladesh had enacted two years of its liberation.
The UN has also assured Bangladesh that it would send experts to share their experiences to help Bangladesh avoid possible errors as a few other countries are being criticized for their mistakes in prosecuting war crimes.
Bangladesh has prepared a white paper and seek assistance from International community
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 andretaliation.
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 United Nations said that some of its top war crimes experts would advise Bangladesh on how to try those accused of murder and rape during its bloody 1971 Liberation War.The government of Prime Minister Sheikh Hasina, in power since the beginning of the year, has promised to hold the trials as soon as possible.
“We have suggested the names of some top international experts who have experience in how war crimes tribunals operate across the globe,” head of the United Nations in Bangladesh, Renata Lok Dessallien, told AFP.
“This is the first time Bangladesh is conducting war crimes tribunals and it is important it understands how other countries have held them,” Renata said.
“There are some countries where mistakes were made and we don’t want Bangladesh to repeat those mistakes,” she added.
Case filed in Australia
A case was filed in the Federal Court of Australia on September 20, 2006 under the Genocide Conventions Act 1949 and War Crimes Act, alleged crimes of genocide, war crimes and crimes against humanity during 1971 by the Pakistani Armed Forces and its collaborators. This is the first time in history that someone named Raymond F Solaiman is attending a court proceeding in relation to the crimes of Genocide, war crimes and crimes against humanity during 1971.
U.S.A to transfer war criminals
Recently, United States Senate has adopted a legislation titled “Denying Safe Havens to International and War Criminals Act of 1999”. In where for the first time, it has empowered the Attorney General, among others, to transfer international criminals in custody for prosecution. The Immigration and Naturalization Service (INS) of US is denying admission or removing aliens who have committed torture abroad.
Dr MA Hasan, convener of War Crimes Facts Finding Committee (WCFFC) says that there is enough evidence to try the war criminals of 1971. “We have many victims still alive, witnesses to the atrocities, documents and other evidence,” he says. Deputy Chief of Liberation Forces Air Vice Marshal (retd) AK Khandker, former advisor of caretaker government and human rights activist advocate Sultana Kamal, war crime researcher and human rights activist Shahriar Kabir and many other experts are equally confident about the availability of the evidence even after a lapse of 37 years.
“If it was possible to try German Nazis fifty years after their war crime,” says Khandker, “there is no question of not holding trials of war criminals of 1971 after 37 years.”
“I believe the trial of war criminals of Bangladesh’s liberation war is not only the responsibility of our state, people, country and government. It is a prerequisite to create a just and civilised society. Those who have committed the worst crimes in this nation’s history must be tried for the sake of humanity,” Sultana Kamal opines.
According to Ghulam Rabbani, former judge of Appellate Division of the Supreme Court, the necessary documentary materials for convicting the collaborators including the killers of intellectuals are all there with the home ministry. “Since the materials are more than 30 years old, according to the Evidence Act those are to be treated as ancient documents,” explains Rabbani. “No other evidence is required as those at the disposal of the ministry would be sufficient as exhibits in the case records, and conviction and sentence on the basis of that are very much possible.”
Some war crime researchers and leading freedom fighters think it would be better if international jurists, other experts and especially the United Nations help the Bangladesh government in the inquiry commission and trials as the UN has done in the case of many countries across the globe. But Justice Ghulam Rabbani thinks, that if we say the trial will be held under the supervision of the UN it will be a dangerous proposition because the country will have to surrender sovereignty.
“We have the necessary Act namely the International Crimes (Tribunals) Act 1973,” says Rabbani, “now the government will have to constitute one or more tribunals by appointing the members according to the terms of the Act.”
Shahriar Kabir, acting president of Ekatturer Ghatok Dalal Nirmul Committee (A Forum for secular Bangladesh) has similar views, “We expect the UN’s role in trying the Pakistani war criminals but now we are more concerned about the trial of Bangladeshi war criminals.” Hasan emphasises on the terms of references of the trial. “The UN can help us in many ways but terms of references should be formulated by our government considering our social, political and historic perspective.”
Some war crime and legal experts say there is scope to categories offences of war criminals of the Liberation War of Bangladesh as in the past few decades many new laws have been formulated, adding new universally accepted definitions of offences such as genocide, war crimes, crimes against humanity and crimes against peace. The International Criminal Court and many other special tribunals in different countries have dealt with war crime and have defined offences in different categories.
“We will have to check thoroughly who were involved with the crimes during our liberation war and under which category of the offences they fall,” says Advocate Sultana Kamal. “We should proceed very carefully with a clear idea as the war criminals cannot evade justice due to the loopholes in laws,” she adds.
Hasan points out the importance of involving the UN as it can play a key role in neutralising pressures from outside that may stand in the way of the process to try war criminals. Says Hasan, “I came to know that when the caretaker government expressed their sincerity to the demand of trial of war criminals, some countries, even from the Middle East put pressure on the government not to try the war criminals.”
Khandker, a newly elected law maker from the AL, also a leader of the Sector Commanders’ Forum, a newly formed organization that came into the forefront in the last two years with the demand for trial of war criminals, says that an inquiry commission can be set up under the tribunal and the commission would go through the existing evidence and will investigate further.
.Justice Rabbani says, “We already have the list of war criminals in Bangladesh and other necessary records and evidence. We have many documents with the names of the people who collaborated with the Pakistani occupation forces under different names including Razakar, Al-Badr and Al-Shams. Now the procedures should be started to try them.”
In order to safeguard the independence and sovereignty of Bangladesh, it is necessary to bring these killers, collaborators and war criminals to justice. Today, Bangladesh has a democratically elected government in power. The government and all opposition political parties are talking about establishing democracy in the country. It would not be possible to establish democracy, rule of law or human rights, by avoiding the trial of those who participated directly or indirectly in the Pakistan army’s campaign of genocide, rape, arson, looting etc. On this score, the principal responsibility to ensure trial falls on the shoulders of the government. Only the government has the power to ensure the trial of any crime.