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“The Foreign Minister of Bangladesh stated that the excesses and manifold crimes committed by the [..] prisoners of war constituted, according to the relevant provisions of the UN General Assembly Resolution and International Law, war crimes, crimes against humanity and genocide, and that there was universal consensus that persons charged with such crimes as the 195 Pakistani prisoners of war should be held to account and subjected to the due process of law.”
- Paragraph 13 of the Bangladesh-India-Pakistan: Agreement on the Repatriation of Prisoners of War and Civilian Internees, signed at Delhi on 9 April 1974
“In the light of the forgoing and, in particular, having regard to the appeal of the Prime Minister of Pakistan to the people of Bangladesh to forgive and forget the mistakes of the past, the Foreign Minister of Bangladesh stated that the Government of Bangladesh had decided not to proceed with the trials as an act of clemency. It was agreed that the 195 prisoners of war may be repatriated to Pakistan along with the other prisoners of war now in the process of repatriation under the Delhi Agreement.”
- Paragraph 15 of the Bangladesh-India-Pakistan: Agreement on the Repatriation of Prisoners of War and Civilian Internees, signed at Delhi on 9 April 1974
Introduction
Back in 1971 during the war of independence, millions of Bengalis experienced a wide range of atrocity crimes which according to Bangladesh’s official narrative was an act of genocide and other serious international crimes committed by the Pakistani military forces in between March and December of 1971. Immediately after the independence, the criminal justice process begun with the enactment of a set of two legal instruments which aimed at bringing the accused individuals – both the Pakistani military officers and the local collaborators – to justice for the commission of international crimes (Beringmeier, pp. 39-44). The very first legislation titled as the Bangladesh Collaborators (Special Tribunals) Order 1972 was a short-lived one as it was repealed on 31 December 1975 due to sudden political upheavals arising out of the assassination of President Sheikh Mujibur Rahman in the coup d’état of 15 August 1975. The military dictators at a stretch ruled the country until 1990 and during this period the criminal justice process for international crimes remained completely frozen. Even after 1990, when the democracy was formally restored, the political parties were largely engaged with fighting one-another for maneuvering the electoral democracy rather than resurfacing the question of justice for past atrocity crimes. Finally, the justice process resumed in 2010 with the establishment of a Tribunal under the International Crimes (Tribunals) Act 1973. Though the International Crimes Tribunalhas tried and convicted a number of local war criminals, it is yet to commence the trial of the Pakistani military officials who were awarded the state-level amnesty and repatriated to Pakistan under the Bangladesh-India-Pakistan: Agreement on the Repatriation of Prisoners of War and Civilian Internees in 1974.
In what follows, the present piece argues that even after fifty-one years of the commission of atrocity crimes, the major war criminals, i.e. the Pakistani (repatriated) prisoners of war do and must incur criminal responsibility as for the reasons that the prosecution of international crimes is not time-barred and that an act of clemency cannot be a legal justification to evade international criminal responsibility. Before delving into the details, it is to admit that this piece does not factually investigate whether the prisoners of war are still alive to stand in the dock. Half a century later, many prisoners of war might have died too, enjoying the status of ‘innocent’ in the eyes of law. Keeping in mind the practice of impunity that the Pakistani prisoners of war exercised for so long, as the piece maintains, neither national nor international criminal laws restrict the prosecution of the prisoners of war still alive to take place.
The Political Scenario as It was Then
All these years why the trial of Pakistani military officials did not take place has been eloquently elucidated in a recently published book The Bangladesh Military Coup and the CIA Link (2014), authored by a New York-based journalist, BZ Khasru. In this book, the author sketches the political portrait of Pakistan-US alliance and the diplomatic geo-strategy concerning the Bangladesh liberation war during and after 1971. Four months into his presidency, as the facts are narrated in the book, Pakistan’s President Zulfikar Ali Bhutto wrote to the US President Richard Nixon requesting him to influence Bangladesh not to put the Pakistani soldiers on trial.
Initially, the issue of Bangladesh’s recognition as an independent state by Pakistan – from which the former ceded through an armed struggle – was subject to Bangladesh’s holding off war-crimes trial. As Pakistan was globally creating pressure on Bangladesh with the support of its allies to free most of the Pakistani prisoners of war, Bhutto threatened that if Bangladesh carried out trial, Pakistan would also hold similar tribunals against the Bengalis trapped in Pakistan (Moses, p. 276). In an interview on 27 May 1973, Bhutto said: “There will be specific charges [against Bengalis held in Pakistan now]. How many will be tried, I cannot say” (The New York Times, 29 May 1973). To prove that it was not just an empty threat, around 203 Bengalis were immediately detained as “virtual hostages” by the Pakistan government against the prisoners of war held in Indian custody.
Fearing about the fate of thousands of Bengalis held in Pakistan and to gain the much-needed access to the United Nations and global recognition, Bangladesh was eventually forced to accept Pakistan’s proposal. In this connection, a total of 195 prisoners of war (out of 90000 held by India) accused of genocide and war crimes were awarded amnesty and repatriated to Pakistan, and in exchange, Pakistan promised that it would arrange the trial of these prisoners of war on their return to Pakistan. In his memoir Bangladesh: Quest for Freedom and Justice, Kamal Hossain, the then Foreign Minister of Bangladesh, reminisced that his counterpart Aziz Ahmed, the then Foreign Minister of Pakistan, at a press conference in Lahore said that ‘if the inquiry commission set up by the Pakistan government to examine the circumstances of the army’s surrender in Bangladesh in 1971 would resume its inquiries after the repatriation of the prisoners was completed, and if as a result of the inquiry the Pakistan government felt satisfied that crimes and excesses had been committed by any of the 195 prisoners of war, the government of Pakistan would consider taking appropriate action against them’ (Hossain, pp. 243-44). Relying on Pakistan’s promise, Bangladesh then withdrew its demand for trying the Pakistani soldiers in Dhaka. But, as Hossain goes on to narrate, ‘when parts of the Hamoodur Rahman Commission Report, which was mandated ‘to investigate the causes of the defeat of the Pakistan military in East Pakistan’, appeared in public in the early eighties, it admitted and confirmed that atrocities had taken place, and Pakistan did not take any action, contrary to its promise’ (Hossain, pp. 244).
Legal Challenges and Replies
Since then, it has been misunderstood that Bangladesh would not have any jurisdiction to try the prisoners of war. However, the Bangladesh-India-Pakistan Agreement of 1974 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 them under a tripartite legal framework intending to bring peace (sacrificing the issue of justice!) to the sub-continent. But such an act of clemency is not tenable under international law and even does not relieve a perpetrator from criminal responsibility. Similarly, repatriation can never mean a wholesale approval of impunity by condoning international crimes. For the sake of debate, one may say that the 1974 Agreement exempted the perpetrators from criminal liability. However, such contention does not sustain in the eyes of customary international law under which Pakistan had (and still has) the duty to try the responsible officers in its territory on their return. Moreover, articles 53 and 64 of the Vienna Convention on the Law of Treaties 1969provides that the treaties in conflict with peremptory norms of international law (either existing or will be emerging) are void and terminated. In international law, atrocities or acts of criminal violence constitute the breach of a peremptory norm of international law, or ‘ius cogens’. According to M. Cherif Bassiouni, international crimes that reach the standard of jus cogens thus create obligation erga omnes which are non-derogable in nature. The implication of such a position is that they are subject to universal jurisdiction, meaning that any state can exercise its jurisdiction to prosecute an accused of international crimes irrespective of where the crimes were committed. In Prosecutor vs. Furundžija (1998), the ICTY found that the prohibition of torture, for instance, is an ius cogens norm and thus it bars amnesties for torture. Based on this, the court further held that “an amnesty granted for torture [therefore] would not bar prosecutions in another state or under a subsequent regime in the state in which it was granted” (cited in Beringmeier, p. 106).
Even Bangladesh’s decision “not to proceed with the trials as an act of clemency” seems not to be compatible with its IHL obligation to prosecute or extradite persons alleged to have committed grave breaches of the Geneva Conventions (GC I-IV, Arts 49, 50, 129, 146 and 51, 52, 131, 148 respectively; GC III, Art. 119(5); CIHL, Rule 128).
Arguing from another perspective, this Tripartite Agreement carries no legal basis in the legal system of Bangladesh as it has not been ratified by the Bangladesh parliament. Article 145A of the Constitution of Bangladesh requires all international treaties to be submitted to the President who will cause them to be laid before the parliament. Till now this Agreement has not been placed before the parliament, nor has it been ratified according to the state practice of Bangladesh. Consequently, this Tripartite Agreement is legally not an obstacle to the trial of Pakistani prisoners of war in Bangladesh.
Conclusion: The Prospect of Criminal Accountability Now
Anyone can question if Bangladesh can now step into the process of trying the Pakistani prisoners of war under the existing legal system of Bangladesh in general and the International Crimes (Tribunals) Act 1973 in particular. In other words, Bangladesh is still accused of lacking the authority to organise trial, because “the alleged criminal acts were committed in a part of Pakistan.” (Burke, p. 1038, cited in Moses, p. 276). Legally speaking, Bangladesh has every right to conduct such a trial, since the crimes committed by the 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 26 March of 1971 through the Proclamation of Independence adopted on April 10 of 1971 by the independence government in exile. The trial of international crimes committed in Bangladesh after 26 March 1971 till 16 December 1971 has no legal restriction to take place.
But the reality is that many of the prisoners of war by now have presumably passed away. Hence, only the living ones will face the trial, should Pakistan extradite them to Bangladesh or any other government, the fact of which of course seems to be very unlikely to happen – given the unstable relations between these two countries. However, the trial is theoretically possible to take place with reference to universal jurisdiction or under the International Crimes (Tribunals) 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, amongst others, 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. Furthermore, the Act has been well-safeguarded against the principle of non-retroactivity as per article 47(3) of the Constitution.
To conclude, there remain so many practical impossibilities, as delineated above, regarding the actual prosecution of Pakistani prisoners of war either in Bangladesh or in Pakistan or anywhere else. Nevertheless, the established legal position is in supportive of not exonerating them from criminal lability for past atrocity crimes and suggests for the prosecution – even of a single prisoner of war – to take place, in compliance with the principles and rules of international criminal law.
Emraan Azad is an Assistant Professor in Law, Bangladesh University of Professionals (BUP). He did his LLM in International Law at the University of Cambridge with a Commonwealth (Cambridge) Scholarship in 2020-21. During his LLM tenure, he served as one of the General Editors at Cambridge International Law Journal.