Crime and punishment
THE term "war criminal" is a generic term. It refers to a person who allegedly commits any of the three international crimes: (a) genocide, (b) crimes against humanity and (c) grave breaches of the 1949 Conventions, 1949, relating to war to protect civilian populations. The first two can be committed in war or in peacetime.
The atrocities perpetrated by Pakistani soldiers in Bangladesh on civilian population during the 1971 Liberation War constitute all the three international crimesgenocide, crimes against humanity and war crimes.
Genocide, crimes against humanity, and war crimes may be tried by any state under universal jurisdiction. The collorary of this principle is, besides Bangladesh, both India and Pakistan have jurisdictions under international law to put any accused person under trial for such crimes.
For the crimes of 1971, two sets of laws were formulated in the country. The first set was proclaimed on January 24, 1972 -- titled the "Bangladesh Colloborators (Special Tribunals) Order 1972." This law was to prosecute certain persons or members of organisations that, directly or indirectly, aided or abetted the Pakistan armed forces in committing international crimes.
The second set was enacted on July 24, 1973 -- titled the International Crimes (Tribunals) Act, and Article 47(3) of the Constitution was inserted in July 1973 to implement the International Crimes (Tribunals) Act. This law was enacted to try and punish any member of the armed forces or auxillary forces accused of international crimes, not only war crimes.
The preparation of the 1973 Act took some time because of the complexities of the principles of international law involved (I was representing the Foreign Office in the committee that prepared the draft of this law), and partly because, in May 1973, Pakistan lodged a case against India before the International Court of Justice at The Hague, asking the Court not to hand over to Bangladesh the 195 Pakistan prisoners of war accused of international crimes. The case at The Hague could not proceed because India did not accept the jurisdiction of the International Court of Justice.
Bangladesh confronted certain ground realities in the early years (1972-75). They were :
Bangladeshi civilian and military officers remained stranded in Pakistan because the Pakistan government held them as hostages unless Pakistani POWs (prisoners of war) were released.
90,000 Pakistani POWs, including senior military officers (195 in number), who had allegedly committed international crimes were in custody in India.
The Bangladesh government announced the first clemency on May16, 1973, under the 1972 Order for persons convicted or charged with offences under this law.
A second clemency was announcerd under the same law on November 30, 1973, for those who were convicted or accused of serious crimes.
Many legal experts argue that the aforesaid acts of clemency under the Collaborators Order are legally untenable because the president is empowered under Article 49 of the Constitution to grant pardon only to convicted persons and not to accused charged with crimes
With the change of regime in 1975, the Colloborators (Special Tribunals) Order of 1972 was repealed on December 31, 1975. Under the law, all proceedings in any tribunal, magistrate, or court, and all investigations or other proceedings before any police officer or other authority "shall abate and shall not be proceeded with."
In September 1973, India (with the agreement of Bangladesh) and Pakistan concluded a deal to exchange Pakistani POWs, except the 195 senior military officers, for Bangladeshi civilian and military officials stranded in Pakistan to return to Bangladesh. (Bangladesh could not directly negotiate with Pakistan on any matter because Pakistan did not recognise Bangladesh until February 1974.)
The Bangladesh government, on 17 April, 1973, announced its decision to put on trial the 195 senior Pakistani army officers accused of international crimes.
However, the international community was much less concerned with commission of international crimes than it is now, and India was keen on maintaining peace and harmony in South Asia and was not interested in the trial of Pakistani officers who remained in India.
Given the external environment at the time, Bangladesh announced clemency for the 195 Pakistan POWs after Pakistan's plea of "forgive and forget," and they were allowed to return to Pakistan under the Tripartite Agreement of April 9, 1974.
It is argued that those persons who were accused of assisting or abetting the Pakistan military in the country could be prosecuted under the 1973 International Crimes (Tribunals) Act because the law provides for trial and punishment of any member of "auxillary forces.' The newly elected government has rightly decided to ask for assistance of the UN in the matter.
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