The second war crimes tribunal of Bangladesh in its first verdict, sentencing Abul Kalam Azad to death, on Monday also addressed a number of legal issues that have long been topics of debate in almost all the cases.
A 24-page summary of the verdict reads, “Jamaat-e-Islami, as an organisation, substantially contributed in creating the para-militia forces (auxiliary force) for combating the unarmed Bengali civilians in the name of protecting Pakistan.”
In a brief account of Abul Kalam Azad, also known as Bachchu Razkar in his native Faridpur, the summary judgement states that Azad was a student of Faridpur Rajendra College.
‘A close associate of Ali Ahsan Mohammad Mujaheed’, the war crimes convict actively aided the Pakistani Army as an armed member of volunteer Razakar Force in Faridpur in committing criminal acts, states the summary.
Currently Jamaat’s number two, Mujaheed is also facing war crimes charges and is behind bars. He replaced the current Motiur Rahman Nizami as the head of Islami Chhatra Sangha’s East Pakistan unit in 1971. At present, Nizami heads Jamaat and faces 16 war crimes charges.
Prosecution for war crimes 'inescapable'
It is often argued that the Bangladesh government had forgiven 195 identified war criminals who were Pakistani Army officers through a tripartite agreement between Bangladesh, Pakistan and India in 1974.
According to the verdict, this agreement was an ‘executive act’ and cannot impede a person’s prosecution for war crimes since the agreement forgiving them was in breach of customary international law. It was also ‘derogatory to the existing law, i.e. the Act of 1971, enacted to prosecute those offenders’.
The tribunal goes on to state, “We are thus inclined to pen our convincing view that the obligation imposed on the state by the Universal Declaration of Human Rights and the Act of 1973 is indispensable and inescapable and as such the ‘tripartite agreement’ which is merely an ‘executive act’ cannot liberate the state from the responsibility to bring the perpetrators of atrocities and system crimes into the process of justice.”
The Collaborators Order of 1972 is often presented by the defence as a case for double jeopardy since many individuals were accused under it. It is often contended that prosecution and punishment for the same crime once under that law and a similar fate under the International Crimes Tribunals Act of 1973 would present a case of double jeopardy.
The tribunal observed that even if Azad were to be prosecuted and tried under the Collaborators Order, his present prosecution under the tribunal’s act ‘cannot be said to be barred by the doctrine of double jeopardy’.
The Collaborators Order was a different law to prosecute persons for offences punishable under the Penal Code. But the 1973 Act “was enacted to prosecute and try the crimes against humanity, genocide and other system crimes committed in violation of customary international law”.
“Therefore, we are disinclined to accept the argument that merely for the reason that since the accused was not brought to justice under the Collaborators Order 1972, now he is immune from being prosecuted under the Act of 1973.”
Delay in prosecution
This section opens with the statement, “From the point of morality and sound legal dogma, time bar should not apply to the prosecution of human rights crimes.”
The verdict refers to the Genocide Convention of 1948 and the Geneva Conventions of 1949, and states that they do not have any provisions on statutory limitations to war crimes and crimes against humanity.
It also refers to Article 1 of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity that provides protection against even any statutory limitation in prosecuting crimes against humanity, genocide, etc.
“Thus criminal prosecutions are always open and not barred by time limitation.”
The verdict says, “Mere state inaction, for whatever reasons, does not render the delayed prosecution readily frustrated and barred by any law.”