News reports, photos enough for trial
Zayadul Ahsan and Shakhawat Liton
Source: Daily Star
December 20, 2007
The International Crimes Act 1973 provides the government with enormous power to still try the war criminals of 1971 by setting up tribunals without facing legal hurdles since the law makes newspaper reports and photographs of war crimes admissible in court as evidence.
The act which was promulgated under the blanket immunity for the government provided by the first amendment to the constitution in 1973 for trying war criminals, also scraps the usual protections ensured for the accused in the Criminal Procedure Code 1898 and in Evidence Act 1872, in an effort to ensure meting out of punishments to war criminals.
It empowers the government to establish an agency for the purpose of investigating war crimes, and provides the officers of the agency with enormous power to investigate the crimes, despite the cancellation of Bangladesh Collaborators Order 1972.
Legal experts said the government may enforce the law any time and may set up tribunals by issuing gazette notifications for trying the war criminals. A war criminal may be tried based on newspaper reports and photographs as the International Crime Act empowers the court to admit those as evidence.
The legal experts also said reports and statements, which were published in the Daily Sangram, the official voice of Jamaat-e-Islami, during the liberation war of Bangladesh, about the activities of the anti-liberation forces, might be sufficient to try the collaborators of the Pakistan occupation forces. Other national and international newspapers published during the liberation war also ran news and photographs about the activities of the anti-liberation local forces, which are also admissible in courts according to the law, said the experts.
Now it requires a government move to set up a tribunal, which according to the act will have almost unlimited power with the authority to sentence the war criminals even to the gallows.
Asked about the significance of the International Crimes Act, eminent jurist Shahdeen Malik told The Daily Star that the whole thrust of the law is to ensure punishment for war criminals.
"A crime has to be proven beyond a reasonable doubt in other criminal laws, but the standard is not applicable in trials under the International Crimes Act, making it much easier to prove war crimes," Malik said.
Jamaat-e-Islami leaders, accused of war crimes, are now denying their anti-liberation activities in 1971, but its official mouthpiece, the Daily Sangram, still bears the documents of their dastardly deeds. Other national and international news media of the time also carried news of Jamaat's atrocities on the struggling Bangalee nation. Jamaat leaders Golam Azam, Abbas Ali Khan, Motiur Rahman Nizami, Ali Ahsan Mohammad Mojaheed, Mohammad Quamarruzzaman, Abdul Quader Mollah, ATM Azharul Islam, Abdus Sobhan and others launched anti -liberation campaigns across the country and organised anti-liberation forces during the liberation war of Bangladesh.
With wholehearted cooperation from Jamaat and some other ultra-rightist political parties, the erstwhile Pakistan government formed forces like Razkars, Al-Badr and Al-Shams to resist the liberation of Bangladesh. The principal task of the forces were to provide the Pakistan occupation army with battle field support and intelligence about local resistance groups, and to identify and eliminate Bangalee nationalists.
The current Jamaat leadership, although did not deny their anti-liberation activities earlier and rather termed their activities of the time as the product of their political stance, are now issuing statements denying the allegations against them in the wake of a growing demand for trials of war criminals, since most of its central leaders are accused of war crimes.
"With honesty and sincerity, we had trust in the then Pakistan," Motirur Rahman Nizami, the then secretary general of Jamaat, told the nation on a state run Bangladesh Television programme 'Sabinoye Jante Chai', on June 4, 1996, ahead of the seventh parliamentary election.
Nizami's claim proved that Jamaat worked against the liberation war of Bangladesh in 1971, but the current Secretary General of Jamaat Ali Ahsan Mohammad Mojaheed on October 25 this year denied their involvement in anti-liberation activities claiming that such forces never existed.
A large number of leaders and activists of Jamaat were accused of war crimes as the trial of war criminals began in 1972 following the enactment of the Bangladesh Collaborators (Special Tribunals) Order 1972. Citizenships of the erstwhile amir of Jamaat, Golam Azam, and of some others were also revoked soon after the victory in the war.
To ensure trial of war criminals the constitution was amended in 1973 providing the government with unlimited power to try war criminals by enacting any type of laws, no matter whether those contradict the constitution or not.
The amendment empowers the government to detain, prosecute and punish any person for war crimes any way it wants, without providing the accused with the protection of law, protection in respect to trials and punishment, and without providing him or her with any recourse to the Supreme Court (SC) for fundamental rights enshrined in the constitution otherwise.
Following the amendment to the constitution, the then government promulgated the International Crimes Act in July 1973, allowing itself 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 inclusion of 'auxiliary forces' in the act allows setting up of a tribunals by the government to try and punish war criminals from forces such as the Al-Badr, Al-Shams, Peace Committees, Razakars, and the Mujahids, that were formed in 1971 against the liberation war of Bangladesh.
But through the August 15 violent regime change in 1975, the process of trying the war criminals was halted since the Collaborators Order was repealed in December of that year by the then military government. The then government however did not repeal the International Crimes Act 1973, while it also did not take any step to set up tribunals for trying the war criminals either.
The central figure in drafting the act, Dr Kamal Hossain, told The Daily Star earlier, "In principle, this law is in force and can be invoked for all the cases that fall under its ambit."
WHAT THE ACT SAYS
The International Crimes Act says the government may, by notification in the official gazette, set up one or more tribunals, each consisting of a chairman with no less than two and no more than four members. Neither the constitution of a tribunal nor the appointment of its chairman or members can be challenged by the prosecution or by the accused persons or their counsels, the law adds.
About the rules of evidence, the law says a war crimes tribunal is not bound by technical rules of evidence, and it shall adopt and apply to the greatest possible extent expeditious and non-technical procedures, and may admit any evidence, including reports and photographs published in newspapers, periodicals and magazines, films and tape recordings and other materials may also be tendered before it, if it deems them as having probative value.
According to the act, a war crimes tribunal will not even require proof of facts for common knowledge, but shall take judicial notice of it.
To ensure smooth trials, the act suspended application of the provisions of the Criminal Procedure Code 1898 and the Evidence Act 1872 in the proceedings of war crime tribunals.
About judgments and sentences, the act says upon conviction of an accused, the tribunal shall award sentence of death or such other punishment proportionate to the gravity of the crime as appears to the tribunal to be just and proper.
The act also limited the scope of appeal against the verdicts of the war crimes tribunal as it says a convicted person may appeal only to the Appellate Division of the Supreme Court against a judgment.
In the act, investigation officers of war crime cases are provided with enormous authorities to enquire into the crimes. The act says any investigation officer, who is appointed by the government, and is carrying out an investigation under the act, may by order in writing, require the attendance before him/herself of any person who appears to be acquainted with the facts and circumstances of the case, and such person/s must attend as so required. Subpoenaed persons are also bound to answer all questions put to him/her by an investigation officer and shall not be excused from answering any question on the ground that the answer may incriminate him/herself, or may tend to directly or indirectly incriminate him/herself.
"Any person who fails to appear before an investigation officer for the purpose of examination or refuses to answer the questions put to him [or her] by such investigation officer shall be punished with simple imprisonment which may extend to six months or with fines which may extend to Tk 2,000, or with both," the act says.
About the special salient points of the act, Shahdeen Malik said the act made it very easy to investigate, try and punish war criminals. The government may entrust any agency to investigate war crimes and the law provides wide power of investigation to the trusted agency, he said.