Shahiduzzaman and Mustafizur Rahman
The cabinet is likely to discuss the proposal for the formation of a tribunal under the International Crimes (Tribunals) Act 1973 to try the war criminals of 1971.
The law minister, Shafique Ahmed, on Sunday said the government was planning to form a special tribunal for the trial of war crimes committed during the independence war in 1971.
‘As the parliament on January 29 unanimously resolved to hold the trial of the war criminals, the government is planning to form the war crimes tribunal… We must take steps to the effect the parliamentary resolution,’ Shafique told reporters in his ministry.
He said the home ministry, as part of the procedure, would need to place a proposal for the formation of the tribunal at the cabinet meeting and the cabinet would work out the modes and terms of reference of the tribunal.
If the tribunal is formed, it will be the first-ever practical step for the trial of the war criminals of 1971.
After the independence, the Bangladesh Collaborators (Special Tribunals) Order 1972, widely known as the collaborators order, was promulgated on January 24, 1972.
The government of Sheikh Mujibur Rahman set up 73 special tribunals, including 11 in Dhaka, to try Razakar, Al-Badr and Al-Shams members, defined as collaborators in the order.
The families of many, killed in the war, filed cases under the order. As of March 28, 1972, 42 cases were filed, according to an announcement of the police at the time.
The number kept rising till November 1973. Several thousand cases were filed under the order, said Khandker Mahbub Hossain, chief prosecutor of the cases under the collaborators order and Abdur Rezaque Khan, then special public prosecutor.
No specific information on the fate of the cases could be found as the old files and police records could not be traced.
Only six cases have so far been disposed of and five persons were convicted, according to what could be gathered from the families of the martyred freedom fighters and intellectuals, the lawyers of the cases and the newspapers of those days.
The process of the trial of collaborators was, however, impeded by a general amnesty for the collaborators, declared by the then prime minister, Sheikh Mujibur Rahman, on November 30, 1973.
The collaborators order was revoked on December 31, 1975 and almost all the collaborators convicted were released in the early days of the regime of Ziaur Rahman, burying the process of the trial of the collaborators.
The government of Sheikh Mujibur Rahman enacted the International Crimes (Tribunals) Act 1973 on July 19, 1973 for the trial of war criminals. Four days earlier, on July 15, 1973, the constitution was amended for the first time providing a constitutional coverage for the act so that it could not be deemed unconstitutional because of its inconsistency with the constitution.
The government also appointed Supreme Court lawyers Sabita Ranjan Pal and Sirajul Haque chief prosecutors, and Aminul Huq and Mahmudul Islam, both of whom later became attorneys general, Ismail Uddin Sarkar, later a judge of the Appellate Division of the Supreme Court, and Abdul Wadud Bhuiyan, who was later made an additional attorney general, special prosecutors.
Nurul Islam, then deputy inspector general of police, was made the chief investigator of the cases under the act. The appointments were made in April 1972 when the act was in the process of being enacted.
No tribunal has so far been formed nor any case filed under the act. No investigation has so far been launched.
According to Section 6 of the act, the government may set up one or more tribunals, each consisting of a chairman and not less than two and not more than four other members.
Any person who is, or is qualified to be, a judge of the Supreme Court or has been a judge of the High Court any time in the territory which now comprises Bangladesh or who is qualified to be a member of the General Court Martial under any service law may be appointed a chairman or member of a tribunal.
A tribunal will not, merely by reason of any change in its membership or the absence of any member thereof from any sitting, be bound to recall and re-hear any witness who has already given any evidence and may act on the evidence already given or produced before it, says Section 6.
Section 3 empowers the tribunal to try and punish any person 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 the act, any crimes specified in the act.
According to the act, the tribunal will have jurisdiction over war crimes, including violation of laws or customs of war which include but are not limited to murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population in the territory of Bangladesh, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages and detainees, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity.
Crimes against humanity, including murder, extermination, enslavement, deportation, imprisonment, abduction, confinement, torture, rape or other inhumane acts committed against any civilian population or persecutions on political, racial, ethnic or religious grounds, whether or not in violation of the domestic law, will also come under the tribunal jurisdiction.
The tribunal will have the powers to try any crimes against peace including planning, preparation, and initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances.
Genocide, including killing members of the group, causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to prevent births within the group, forcibly transferring children of the group to another group, will also come under the jurisdiction of the tribunal.
The jurisdiction of the tribunal also includes violation of any humanitarian rules applicable to armed conflicts laid down in the Geneva Conventions of 1949, any other crimes under international law, attempt, abetment or conspiracy to commit any such crimes, and complicity in or failure to prevent commission of any such crimes.
According to Section 4 of the act, if any crime is committed by several persons, each of such people is liable for that crime in the same manner as if it were done by him alone.
The official position, at any time, of an accused will not be considered freeing him from responsibility or mitigating punishment, says Section 5 of the act.
The authorities had sufficient evidences of war crimes committed during the independence war along with the list of the auxiliary forces of the Pakistani troops, according to the law minister.
‘We have adequate evidences of crimes against humanity during the independence war… The names of the auxiliary forces which collaborated with the Pakistani military were in gazettes of the time,’ said Shafique, also a legal expert.
He said the people who committed crimes against humanity in 1971 and were involved in killing, violation and arson would obviously face the trial.
‘The names of the local collaborators were in official records… First, initiatives will be taken to carry out investigations and then charges sheets will be submitted to begin the trial process,’ said the minister.
Courtesy: newagebd.com
