Genocide Act enough to try war criminals

Genocide Act enough to try war criminals
Act formulators say
Ashfaq Wares Khan
Source: Daily Star
November 7, 2007

The government may still try war criminals under the much-neglected Genocide Act 1973, which allows it to set up tribunals to try and punish members of military and 'auxiliary' forces from any country guilty of war crimes and genocide in Bangladesh.

The central figure in drafting the act, Dr Kamal Hossain, told The Daily Star, "In principle, this law is in force and can be invoked for all the cases that fall under its ambit."

The inclusion of auxiliary forces in the act allows setting up of a tribunal by the government to try and punish war criminals from forces such as Al-Badr, Al-Shams, and Peace Committees that were formed in 1971 against the war of liberation of Bangladesh, if it can be proven that they were under the control of the occupying Pakistani military. The punishments under the act are either death or any other appropriate penalty commensurate to the gravity of the war crime committed.

Dr Kamal however added that the definition of 'auxiliary forces' should be carefully examined after looking at the necessary evidence of the activities of forces such as Al-Badr and Al-Shams.

The International Crimes (Tribunals) Act 1973 (ICA), promulgated on July 20, 1973 empowers the government to try individuals on specific charges of crimes against humanity and peace, genocide, war crimes, violation of the Geneva Convention and international laws, for assistance or conspiracy to commit such crimes, and for failure to prevent commissioning of such crimes.

The government only needs to set up a tribunal under the act which is still applicable, as the general amnesty granted to war criminals by Bangabandhu Sheikh Mujibur Rahman in 1973 does not apply to individuals against whom there had been specific charges of war crimes.

The press note on the general amnesty on November 30, 1973 states, "Those who were punished for or accused of rape, murder, attempt to murder or arson will not come under the general amnesty."

The gazette notification promulgating the ICA on July 20, 1973 says the tribunal set up under the act 'shall have the power to try and punish any person irrespective of his nationality, who, being a member of any armed, defence or auxiliary forces commits or has committed in the territory of Bangladesh, whether before or after the commencement of this act, any of the following crimes."

The act goes on listing the crimes against humanity including rape, torture, abduction, confinement of civilian population, or persecution on political, racial, ethnic or religious grounds, while crimes against peace are defined as planning, preparing, initiating or waging a war in violation of international treaties.

The ICA deals with genocide in the most detail, defining it as acts that are committed with intent to 'destroy in whole or in part, a national, ethnic, racial, religious, or political group'.

The crimes that are considered acts of genocide include killing of members of any of the groups, causing serious bodily or mental harm to members of the groups, deliberately inflicting 'conditions of life calculated to bring about a group's physical destruction in whole or in part', imposing measures to prevent procreation within a group, and forcibly transferring children of one group to another.

War crimes are defined by the ICA as violations of internationally recognised war customs, including but not limited to murder and ill-treatment of civilians or prisoners of war, plunder of private property, wanton destruction of cities, towns or villages, and devastation not justified by military necessity.

According to one of the writers of the draft, former ambassador Waliur Rahman, the ICA was initiated by Bangabandhu immediately after his return from internment in Pakistan in January 1972, and was drafted under the direct auspices of two prosecutors from the Nuremberg Trials.

He said the Nuremberg prosecutors were even willing to come to Bangladesh during that period to hold a 'symbolic trial', but could not do so because of other political preoccupations of the Bangladesh government back then.