I want to question the role of both the state machinery and the global community in failing to punish the primary perpetratorsFour months into his presidency, as the fact is shown in the book, Pakistan’s then President Zulfikar Ali Bhutto wrote to US President Richard Nixon requesting him to influence Bangladesh not to put Pakistani soldiers on trial on charges of atrocities committed during 1971. However, Bangabandhu Sheikh Mujibur Rahman was determined to try Pakistani POWs. But, at one point of history, we witnessed those POWs getting repatriated to Pakistan. Initially, the issue of recognising Bangladesh as an independent state by Pakistan was subject to Bangabandhu’s holding off the war crimes trials in Bangladesh. Moreover, Pakistan was creating pressure on Bangladesh with the support of its allies to free the majority of the Pakistani POWs. Zulfikar Ali Bhutto threatened that if Bangladesh carried out the trial of 195 POWs, Pakistan would also hold similar tribunals against Bangladeshis trapped in Pakistan. In an interview on May 27, 1973, Bhutto said: “There will be specific charges [against Bengalis held in Pakistan now]. How many will be tried, I cannot say.” To prove that it was not just an empty threat, around 203 Bengalis were immediately detained as “virtual hostages” by the Pakistan government for 195 POWs. Fearing for the fate of the thousands of Bengalis held in Pakistan, and to gain the much-needed access to the UN, Bangladesh was finally required to accept Pakistan’s proposal. In this connection, 195 POWs accused of genocide and war crimes were repatriated to Pakistan under the Delhi Agreement, and in exchange, Pakistan promised that it would hold the trial of 195 POWs on its own soil. Relying on Pakistan’s promise, Bangladesh then withdrew its demand for trying the Pakistani soldiers in Dhaka.
Since then it has been misunderstood that Bangladesh would not have any jurisdiction for the trial of those 195 POWs.
However, the Delhi Agreement very clearly shows that they were not freed without charges; rather, they were handed over to Pakistan so that they could be prosecuted by the Pakistani authorities.
It is true that the Bangladesh government did not proceed with the trial as an act of clemency was shown to the POWs under the Delhi Agreement.
But such an act of clemency is not tenable under international law and even does not relieve a perpetrator from criminal responsibility. Similarly, repatriation does not mean condoning murder, rape, arson, and other atrocities.
For the sake of debate, one may say that the agreement exempted perpetrators from criminal liability. Despite that, such contention does not sustain in the eyes of customary international law for the following reasons.
Firstly, under customary international law, it was imperative of Pakistan to try the responsible officers in Pakistan on their return. Secondly, Articles 53 and 64 of the Vienna Convention on the Law of Treaties, 1969 provides that the treaties in conflict with peremptory norms of international law (either existing or emerging) are void and terminated. In international law, atrocities or acts of criminal violence amount to the breach of a peremptory norm of international law, or jus cogens.
And international crimes that rise to the level of jus cogens constitute obligation erga omnes which are non-derogable, according to M Cherif Bassiouni.
The implication of such a position is that they are subject to universal jurisdiction, meaning all states can exercise their jurisdiction in prosecuting a perpetrator irrespective of where the crimes were committed.
As a matter of exercising its right to self-determination, Bangladesh was born with retrospective effect on March 26, 1971 through the Proclamation of Independence. The trial of the international crimes committed in Bangladesh in 1971 has no legal restriction in taking place
Taking into account another aspect -- since this tripartite agreement has not been ratified by Bangladesh parliament under Article 145A of the constitution, it carries no legal basis.
In this connection, I would like to refer to Article 145A which requires all international treaties to be submitted to the president who will cause them to be laid before parliament.
Till now, this tripartite agreement of 1973 has not been placed before the parliament as per constitutional requirement. Consequently, this tripartite agreement is legally not an obstacle to the trial of 195 POWs.
Now, let us see whether Bangladesh can step into the process of trying these war criminals under the existing legal system of Bangladesh in general and the ICT Act 1973 in particular.
Legally, Bangladesh has every right to hold trial of those perpetrators, since the crimes committed by Pakistanis in 1971 took place on the soil of Bangladesh.
As a matter of exercising its right to self-determination, Bangladesh (previously East Pakistan) was born with retrospective effect on March 26, 1971 through the Proclamation of Independence adopted on April 10, 1971.
The trial of the international crimes committed in Bangladesh from March 26 to December 16, 1971 has no legal restriction in taking place.
Since the independence of Bangladesh in 1971, the reality is that many of the 195 POWs by now have passed away. Hence, only the living ones will face the trial, if Bangladesh wants to prosecute. The trial is possible to take place under the ICT Act 1973 which was enacted “for the detention, prosecution, and punishment of persons for genocide, crimes against humanity, war crimes, and other crimes under international law.”
The jurisdiction of the tribunal extends, as per Section 3, to try and punish any individual or group of individuals, or member of armed, defence, or auxiliary forces irrespective of his nationality, who has committed the above-mentioned crimes under international law in the territory of Bangladesh before or after the commencement of this act.
In this sense, this law has both retrospective and prospective effect. This act has been safeguarded well against the principle of non-retroactivity as per Article 47(3) of the constitution.
We believe that the trial of 195 POWs is still possible in Bangladesh like the way Bangabandhu Sheikh Mujibur Rahman believed in his lifetime. Once, Richard Nixon’s former treasury secretary John Connally, being a special envoy in South Asia, asked Bangabandhu what he would do about the POWs. Bangabandhu vehemently replied: “We must try them. They must pay for these crimes. Not all of 1,500, maybe 300, maybe 200, or maybe 100. But we must have some trials. They must be tried on this soil for the crimes committed on this soil.”
Emraan Azad is a Lecturer of Law, the University of Asia Pacific.