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Genocide and Justice in Asia: The Case of Bangladesh By Md. Hasibul Islam*

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Abstract

Of all the genocides that have taken place throughout the history in the Asian region, Bangladeshis arguably faced the worst one ever. This refers to the gross human rights violations that took place in Bangladesh in 1971, an incident that prompted the region of East Pakistan to separate itself from West Pakistan and rise as a sovereign entity on its own. As part of the casualties of the nine month war, around 30,00,000 people were killed and around 400,000 women were raped by the Pakistani Army and their supporting local militias, with many of the population displaced either internally or in the neighboring India. After the independence it became an adamant goal for Bangladesh to hold trials for the perpetrators behind these crimes. For that purpose, in 1973, the International Crimes (Tribunal) Act was passed. But it was not until 2010 following some political shifts and enforced amendments to the Act, that the tribunal was finally established. For now the tribunal is only able to prosecute the individuals living within Bangladesh, but the members of the Pakistani military are still not within its jurisdiction. Despite this crucial drawback, it has garnered some advantages over its other counterparts in Asia and the entire world at large, due its nature as a domestic tribunal and its successes in trials. This paper, therefore, aims to discuss the relevant genocide and justice mechanisms in the Asian region, from the Bangladesh perspective, so as to determine whether the country is judicially equipped to deal with the said crimes for the dispensing of justice.

Introduction

This paper is an endeavor to have a perusal on the judicial devices for dealing with the crimes of genocide in the Asian region, from the perspective of Bangladesh. Therefore, the end goal is to disseminate whether the country is judicially equipped to dispose of cases relating to the said crimes or not. From time to time, humanity has shown its apparent unpreparedness to deal with the heinous crime of genocide. In Asia alone, several notable genocides have taken place and subsequently different judicial mechanisms have been devised in order to deal with the perpetrators. In this paper we shall examine the stance of Bangladesh as a country and its respective judicial capability in dealing with such matter.

Genocide and Justice in Asia

Countless genocides took place in Asia and in their aftermaths, different mechanisms have been devised for the trial of the perpetrators. For instance, in Timor Leste (previously known as East Timor) as many as 180,000 people are estimated to have been killed during a brutal occupation by Indonesia. Afterward, ad-hoc tribunals have been set up for the trial of the human rights violations. In Cambodia, genocide was carried out which killed 25% of the total population between 1975 and 1979 by the Khmer Rouge regime. In 2004, a hybrid court known as the Extraordinary Chambers in the Courts of Cambodia was established, as part of an agreement between the UN and the government of Cambodia, for conducting the trials of the perpetrators.[1]

Genocide in Bangladesh: Historical Background

After the decisive majority victory of Awami Muslim League, a political party based in East Pakistan in the general election of Pakistan in 1970, the situation became dire. The West Pakistani leadership showed reluctance in handing over power. Thereafter, East Pakistan soon collapsed into a state of turmoil though rallies and protests that resulted in the closure of all government operations in the region at substantial rates within days.

The Pakistani Military Junta therefore initiated extensive assault on both rural and urban areas of the region as a way of squashing the civil disobedience, beginning with the massacres of Operation Searchlight and the Dhaka University Massacres. This paved the way for a series of acts constituting mass violation of human rights and genocide on the local inhabitants. Apart from the killing of 30,00,000 people and the mass-raping of Bengali women, around 10,000,000 people had to flee to India while many more were internally displaced.

Domestic Laws against Genocide: The Way towards Justice

  1. Enactment of the ICTBD Act, 1973

After the independence of Bangladesh, the succeeding government quickly enacted a law in 1973 that would authorize the investigation and hold trial for the said crimes. The law passed was called the International Crimes (Tribunals) Act, 1973. The Act in itself, along with the succeeding amendments, is complete in law. It also includes much of the international jurisprudence on the concerned matters of meaning and definitions. For example the definition of ‘genocide’ as enumerated in the Act is barely distinctive from the one given in the Convention on the Prevention and Punishment of the Crime of Genocide (1948).

  1. Subsequent Enforcement of the Act

After the commencement of the Act, investigations were carried out to identify the perpetrators behind the crimes. At the time, only 195 Pakistani military members were identified as such and no Bengalis were included in that number.[2] The press for trials of these accused was squashed on several reasons; even those 195 Pakistani army figures were granted amnesty when a tripartite agreement between Bangladesh, India and Pakistan took place in 1974. The agreement was the subject of criticism for Pakistan as it pretty much squashed the accountability for the breach of conduct in the 1971 war.[3]

  1. Revitalization and Amendment

Due to some other political and sociological reasons, the Act did not come into force until the press for trial was revitalized around the 2008 general elections after some political shifts in power. By 2009, the Government of Bangladesh had already voted for the creation of a tribunal for the said trials. To assure that the trials are able to keep up with the current international standards of trials of similar nature, the Act was also amended by the country’s own law commission. The following are the new elements added by the said amendment –

  1. The ability to hold trial of a political party should it be accused of involvement in any of the concerned crimes;
  2. Allowing the government to file appeal to the Supreme Court, should the suspect be acquitted by the tribunal.

 

  1. Jurisdiction of the Act

As enumerated in Section 3(1) of the Act, the jurisdiction of the tribunal is to try and punish any individual or group of individuals, or organization, or any member of any armed, defense or auxiliary forces, irrespective of his nationality, who commits or has committed, in the territory of Bangladesh, whether before or after the commencement of this Act, any of the crimes mentioned in sub section 2.[4]

The crimes covered under the said sub-Section 2 are the followings –

  1. Crimes against humanity;
  2. Crimes against peace;
  3. Genocide;
  4. War crimes;
  5. Violations of any humanitarian rules applicable in armed conflicts laid down in the Geneva Convention of 1949 or any other International Law;

The Section 3(2) also specifies that “attempt, abetment, or conspiracy to commit any such crime or complicity in or failure to prevent commission of any such crimes is also offences that can be tried under the Act”.

However, some parts of the Act which dictate these jurisdictions of the tribunal can be put to question. Especially on the portions that “individuals may be tried despite his nationality and the time of the crime”, it needs mentioning that as of 2019, the individuals who have been tried under the tribunal are Bengali people who were either associated with or members of the local militias such as Bazaar, Al Bandar, Al Shams and who were abettors to the crimes of 1971.

In contrast, the members of the Pakistani military are still out of reach of the tribunal. This outcome can be credited to a handful of factors, such the newly independent country’s inability to take all of the surrendering Pakistani military members as prisoners of war or the fact that Bangladesh currently does not have any arrangement with Pakistan that would allow the tribunal to actually exert its authority on their citizens.

Establishment of the tribunal

The International Crimes (Tribunal) Act dictates the constitution of the tribunal. In Section 6 it has been specified that “the government may set up one or more Tribunals, each consisting of a Chairman and not less than two and not more than four other members”. The qualification to be a chairman or a member of the tribunal is any person who is a Judge, or is qualified to be a Judge, or has been a Judge, of the Supreme Court of Bangladesh.

On that note, the formation of the first tribunal was announced on March 25, 2010, which also included an investigation agency and a team of prosecutors to aid the trials.[5] With the span of time, a second tribunal was established on March 22, 2012, to lessen the pressure put on the first one.[6] On September 15, 2015, the Government of Bangladesh officially merged the two tribunals into a single one.

Distinct Features of the International Crimes Tribunal Bangladesh

  1. Effectiveness so far: Since the establishment of the tribunal in 2010 and as of 2019, it has successfully tried and delivered judgments on 33 cases. This is a commendable achievement on the part of the judiciary, especially when we consider the con-current state of the judicial system of Bangladesh. In Bangladesh, even a civil case can sometimes rest in the courts for decades due to numerous factors relating to inefficiency. But in contrast, the International Crimes Tribunal has been a beacon of hope in this regard.
  2. Superior and individual responsibilities: The Act recognizes both the superior and individual responsibilities on the crimes concerned to be punishable. In Section 3(1) it has been stated that the tribunal is equipped with the power to try-

“any individual, group of individuals or organization, or any member of any armed, defense or auxiliary forces, irrespective of his nationality, who commits or has committed, in the territory of Bangladesh, whether before or after the commencement of this Act, any of the crimes mentioned in sub section 2”.

Additionally, the superior responsibility has also been made punishable in Section 4 by declaring that, any commander or superior officer who –

  1. orders, permits, acquiesces or participates in the commission of any of the crimes specified in Section 3; or
  2. is connected with any plans and activities involving the commission of such crimes; or
  • who fails or omits to discharge his duty to maintain discipline; or
  1. who fails to control or supervise the actions of the persons under his command or his subordinates.

Whereby such persons or subordinates or any of them commit any such crimes, or who fails to take necessary measures to prevent the commission of such crimes, is guilty of such crimes.

  1. Nature of prosecution: The prosecution built under the Act is also a prospect of the tribunal to some extent, mostly due to its domestic nature. In Section 7, it has been stated that “the Government may appoint one or more persons to conduct the prosecution before a tribunal on such terms and conditions as may be determined by the Government; and every such person shall be deemed to be a Prosecutor for the purposes of this Act.” From such body of prosecution, the Government may appoint one as the Chief Prosecutor.[7]

The fact that all the prosecutors have been Bangladeshi nationals makes the trial procedures less of a duress than other tribunals of this nature. It becomes cost effective in terms of the expenses for the prosecutors, and the prosecutors in most cases conform to their own incentives for the prosecution of the criminals concerned.

  1. Completely domestic tribunal: All trial procedures of ICT-BD including evidence collection or operation and the involvement of personnel such as the judges, prosecutors, investigators, criminals everything is of domestic origin. The proximity factor has always been a huge prospect for the tribunal, as this inherent trait has allowed witnesses the convenience to give spontaneous testimony before the tribunal. Even in case of rape victims and war babies, the social silence was broken when people were able to testify against the criminals in question.

Unlike most other tribunals of similar nature in other countries, the tribunal justifies itself through maintaining some key international standard in areas such as its operation and definitions but does not require any guidance from any international legal tools or bodies. This also entails a double edged point that is an excuse for both approval and criticism. The independence of the tribunal ensures its efficacy and frees it from interference from any extra national bodies or powers. But at the same time, it also opens a window for criticism by the international community on a lot of grounds.

  1. A tribunal of international standard: The prevailing definition of genocide contained in Article 6 of the Rome Statute of International Criminal Court, provides-

‘genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

  1. Killing members of the group;
  2. Causing serious bodily or mental harm to members of the group;
  3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
  4. Imposing measures intended to prevent births within the group;
  5. Forcibly transferring children of the group to another group.”

Comparing this definition to the definition of genocide as given in the International Crimes (Tribunal) Act of Bangladesh, 1973 it can be understood that the Bangladeshi provision maintains the same meaning in Section 3(2)(c) while adding ‘political groups’ among the groups upon which the crime of genocide can be initiated. This has been a long standing debate in the international community that whether political ideology can categorize a group in this case. For instance, it is not considered genocide in Nuremberg Charter, or the Genocide Convention of 1948. Additionally, the Article 4 of the International Crimes Tribunal for the former Yugoslavia (ICTY) Statue, the Article 2 of the International Crimes Tribunal of Rwanda (ICTR) Statute and the Article 6 of the Rome Statute all share the commonality in the definition of genocide but does not include political groups for this purpose.

But in the International Crimes (Tribunal) Act there is no such confusion as to the consideration of aggression against any group on political grounds, and political groups are added as one of the victim groups. Another fact to be cited here is that the International Bar Association has given its own commendation that the Act, along with the later amendments made to it in 2009, is broadly on par with the international standards.[8]

  1. Revision and appeal: The tribunal in concern shows a definitive advantage over its other counterparts in it that it has a mechanism for review, revision and appeal on any judgment or order passed. In Section 21, it has been stated that a judgment from the tribunal can be appealed to the Appellate Division of the Supreme Court of Bangladesh. In contrast, right to appeal in case of the ICC[9], ICTY[10], ICTR[11] lies with the appeal council. In case of provisional proceedings, there is mechanism for it in ICC[12], ICTY[13], and ICTR[14]. But The ICT BD Act is silent on the matter of review. However, the Constitution of the People’s Republic of Bangladesh in Article 105 allocated the right to revision with a limitation period of 15 days.
  2. Right to bail of the accused: There is no statutory right to bail allocated to an accused by the governing Act. But conditional bails were granted to the accused such as Md. Abdul Alum on 31 March 2011 and to Syed Md. Kaiser on 5 August 2013. Therefore it is prudent to assume the discretionary power of the tribunal to bridge this gap in the statute.
  3. Pardon: In the occasion of a judgment from the tribunal, it is possible to account for pardon under Article 49 of the Constitution of Bangladesh, which allows the President the power to pardons, reprieves and respites and to remit, suspend or commute any sentence passed by any court, tribunal or other authority. In the ICT BD, however, pardon is not allowed at all. Moreover, there are no provisions allowing pardon in the ICTY[15] and the ICTR[16] as well.
  4. Span of the punishment: The highest punishment that can be awarded by the tribunal is death penalty. Section 20 of the ICT-BD Act states that –

Upon conviction of an accused person, the Tribunal shall award sentence of death or such other punishment proportionate to the gravity of the crime as appears to the Tribunal to be just and proper’.

The courts discretion on the “proportionality” of the punishment awarded can vary depending on the cases concerned. This may be better explained with some case examples. In the first 7 years of the tribunal, 14 peoples were given capital punishment, while some others were sentenced to imprisonment for life. In the case of Chief Prosecutor vs. Professor Gholam Azam, the accused was found guilty of all 5 charges brought against him but was given 90 years of punishment upon consideration of his current age.[17] Following similar reasons, other war criminals named Mahidur Rahman, Abdul Alim and Afsar Hossain Chutu[18] in their own respective cases were convicted with life imprisonments.

The Tribunal has received criticism on the use of capital punishment in it judgments by the international community. This argument is not necessarily prudent in this case, especially after considering the fact that this country has been practicing capital punishment for years.

Conclusion

Upon considering the present circumstances of the International Crimes Tribunal Bangladesh and the implementation of the International Crimes (Tribunal) Act, 1973, it can be a decisive notion to say that it has its characteristics in both prospect and failure. It has so far been successful in prosecuting the local abettors and criminals of the 1971 human rights violations, but has not been able to touch the true perpetrators, the members of the Pakistani Military. But considering the short history of the sovereign Bangladesh, along with the sociological and political demography of the country, it is apparent that the tribunal is an essential instrument of justice for the addressing the past grievance of an entire nation.

References

  1. Constitution of the People’s Republic of Bangladesh

  2. International Crimes Tribunal Act, Bangladesh (1973)

  3. ICTY (International Criminal Tribunal for the former Yugoslavia) Statute

       4.  ICTR (International Criminal Tribunal for Rwanda) Statute

  1. Rome Statute of the International Criminal Court (ICC)

       6.  The Chief Prosecutor vs. Professor Gholam Azam, ICT-BD 06 OF 2011

      7.  The Chief Prosecutor vs. Md. Mahidur Rahman & Md. Afsar Hossain Chutu, ICT-BD 02 of 2014

  1. Ahmed S., ‘The Curious Case of the 195 War Criminals’, The Daily Star, <http://archive.thedailystar.net/forum/2010/may/curious.htm> May 2010, Dhaka

  2. Bergsmo M. and Wui Ling C, “Old Evidence and Core International Crimes”, Torkel Opsahl academic epublisher, <http://www.toaep.org/ps-pdf/16-bergsmo-cheah>

  3. Jalil Md. A., “War Crimes Tribunals in Bangladesh: A Socio-Political and Legal Impact Analysis ICSR”, Macro Think Institute, <http://www.macrothink.org/journal/index.php/jsr/article/view/2484>

  4. International Crimes Tribunal 1, International Crimes Tribunal Bangladesh, <https://www.ict-bd.org/ict2/>

  5. International Crimes Tribunal 2, International Crimes Tribunal Bangladesh, <https://www.ict-bd.org/ict2/>

  6. Office of the Co-Prosecutors, Extraordinary Chambers in the Courts of Cambodia (ECCC), <https://www.eccc.gov.kh/en/organs/office-co-prosecutors>

Footnote

[1] Article 1 of the Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea, <https://www.eccc.gov.kh/sites/default/files/legal-documents/Agreement_between_UN_and_RGC.pdf>  last accessed on March 23, 2019

[2] Md. Abdul Jalil , “War Crimes Tribunals in Bangladesh: A Socio-Political and Legal Impact Analysis ICSR”, MacroThink Institute, < http://www.macrothink.org/journal/index.php/jsr/article/view/2484> Date Accessed: March 24, 2019

[3] Syeed Ahmed, ‘The Curious Case of the 195 War Criminals’, The Daily Star, Dhaka, May 2010 <http://archive.thedailystar.net/forum/2010/may/curious.htm> Date Accessed: March 27, 2019

[4] Md. Abdul Jalil , “War Crimes Tribunals in Bangladesh: A Socio-Political and Legal Impact Analysis ICSR”, MacroThink Institute, < http://www.macrothink.org/journal/index.php/jsr/article/view/2484> Date Accessed: March 24, 2019

[5] International Crimes Tribunal 1, International Crimes Tribunal Bangladesh, <https://www.ict-bd.org/ict2/> Date Accessed March 27, 2019

[6] International Crimes Tribunal 2, International Crimes Tribunal Bangladesh, <https://www.ict-bd.org/ict2/> Date Accessed March 27, 2019

[7]Article 7(2) of the ICT-BD Act 1973 reads: ‘The Government may designate one of such persons as the Chief Prosecutor’.

[8] Morten Bergsmo and CHEAH Wui Ling, “Old Evidence and Core International Crimes”, Torkel Opsahl academic epublisher, <http://www.toaep.org/ps-pdf/16-bergsmo-cheah> Date Accessed: March 28, 2019

[9] Article 81-83 of the Rome Statute, International Criminal Court (ICC)  

[10]Article 25, International Criminal Tribunal for the former Yugoslavia (ICTY) Statute

[11]Article 24 of the International Criminal Tribunal for Rwanda (ICTR) Statute

[12]Article 84 of the Rome Statute, International Criminal Court (ICC)

[13]Article 26 of the International Criminal Tribunal for the former Yugoslavia (ICTY) Statute

[14]Article 24 of the International Criminal Tribunal for Rwanda (ICTR) Statute

[15]Article 28 of the International Criminal Tribunal for the former Yugoslavia (ICTY) Statute

[16]Article 27 of the International Criminal Tribunal for Rwanda (ICTR) Statute

[17] The Chief Prosecutor vs. Professor Gholam Azam, ICT-BD 06 OF 2011

[18] The Chief Prosecutor vs. Md. Mahidur Rahman & Md. Afsar Hossain Chutu, ICT-BD 02 of 2014

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