How long can justice be denied
THE assassination case of the Father of the Nation and his family has remained unresolved since 1975, as have other murder cases like the jail killing of four national leaders, the trial of people accused of war crimes and genocide in 1971, the August 21 bomb blast attempt to kill now Prime Minister Sheikh Hasina, the BDR mutiny, and the murder of former Finance Minister SAMS Kibria, among others.
Despite the machinations of interested quarters to see that these cases do not see the light of day, they still haunt the nation and demand that justice be done. Thomas Jefferson once wrote to a political colleague "we have long suffered under the prostitution of law to the passion in one judge and the imbecility of another." Another sage once asked, "What is a kingdom without justice but robbery?"
Any discussion on securing justice inevitably brings us to A Theory of Justice by John Rawls. Rawls based his arguments on the equal liberty principle which presupposes that each person has an equal right to most extensive liberties compatible with similar liberties to all, and the difference principle that presupposes that social and economic inequalities may be allowed if such acceptance leads the greatest benefit to the least advantaged people, provided positions are open to all under conditions of equality. Though the difference principle, at first flush, endorses inequality of financial remuneration based on different talents and qualifications, it is egalitarian as the seeming inequality is aimed at raising the standard of living of those people worst off, and will continue to have access to privileged position, not denied according to irrelevant criteria.
Martha Nussbaum (Women and Human Development) extends to Rawls a commitment, made by citizens and their government, to a threshold of real opportunities below which no human being should be allowed to fall if he/she is able to rise above it. Nobel Laureate Amartya Sen, going outside his field, wrote The Idea Of Justice in which he cites from Charles Dickens Great Expectations, "In the little world where children have their existence, there is nothing so finely perceived and finely felt, as injustice." Sen believes that identification of redressable injustice is central to the theory of justice. Some jurists have described justice as a tolerable accommodation of society's conflicting interests. While theorists continue to wrangle with the fine points of justice theory and expand its boundaries, as all enquiries do, the demand of the populace that heinous crimes should not go unpunished cannot be justifiably denied.
Decades back, the UN International Law Commission adopted the Nuremberg principles, the basic stating that no person, no matter their office, stands above international law. One principle included that a person's actions pursuant to the order of his Government, or of a superior, do not relieve him from responsibility under international law, provided a moral choice is possible to him. The Nuremburg trials also described punishable crimes as crimes against humanity, war crimes, and crimes against peace.
Our nation has waited long for justice to be done in several cases, the most notable being the assassination of the Father of the Nation. While the Bangabandhu assassination case is at its final stage, the trials of some other cases may need to proceed cautiously; this is so we do not miss the Grotian moment signifying a legal development that may create a new customary international law or radically transform the interpretation of treaty-based law.
In 2006, the Frederick Cox Center at Case Western Reserve University School of Law, in collaboration with the International Bar Association and others, held an international conference titled Lessons from Saddam Trial. According to one lesson, post-conflict countries that undertake domestic war crimes trial need unbiased international assistance. The conference felt that transitional justice should be a key goal that attracts legal and administrative support from across the international spectrum. Though claims were made that due to security reasons, identities of foreigners assisting the Iraqi High Tribunal (IHT) could not be divulged, more advisers and experts need to be recruited in future and their contribution made public.
It was also resolved that domestic war crime trials should be kept short and focused. Furthermore, trials should make gender equality a priority, recognizing that many war crime victims and related atrocities are women. This should be particularly true in the case of Bangladesh as many of the 1971 victim war crimes were women.
Trial of persons accused of war crimes and crimes against humanity cannot be confined to legal chamber and are bound to have both domestic and international repercussions. In Bangladesh, public support is unanimous for the trial. Internationally, few countries are believed to canvass against holding the trial. All these, apart from the rights of the victims, and however long the wait, must be respected. Justice to the aggrieved in all cases cannot be denied any longer.
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