Reviewing The Views
Evasion of justice: perpetual agony
It is a matter of exhilarating jubilation that after traumatic procrastination of approximately 42 years the heinous war criminals have been brought to book. The trial proves that justice protracted is not necessarily justice gainsaid. But the rending torments of victims will not be assuaged unless Pakistani war criminals, the living phantoms, are brought to justice. The celestial dictates of justice will not be realized unless the 195 listed war criminal repatriated to Pakistan by dint of preposterous treaty of 1974 are shown the music of law. The Tribunal rightly observed that a cogent national effort is prerequisite to bring them within the ambit of law [Chief Prosecutor v. Quader Molla (2013)].
The agonizing context of granting clemency to 195 Pakistani war criminals was dexterously delineated by Kamal Hossain in his book 'Bangladesh: Quest for Freedom and Justice'. He put down that it was the appeals from countries assembled at the Islamic summit, US & USSR which led Bangladesh to grant clemency. The granting of clemency can in no way be interpreted to exculpate the despicable criminals of the charge. The tribunal observes that the scope of clemency being limited to Bangladesh decision not to try them has kept option open for the trial of these vandals [Chief Prosecutor v. Kamruzzman (2013)].
Treaty-making is an executive prerogative under our constitutional mechanism [Kazi Mukhlesur Rahman v. Bangladesh 26 DLR AD 44]. The constitution of Bangladesh encapsulates the separation of powers [Abdul Mannan Bhuiyan v. State 60 DLR AD 49]. Being a party to the Tri-partite Agreement of 1974 the Executive has allowed the evasion of the due process of law and thereby has militated against the Constitution and frustrated the motto of the ICT Act 1973. Making of such treaty was not within the exclusive realm of the Executive. Therefore the treaty should have been produced before the Parliament in line with Art. 145A of the Constitution. Charles D. Fenwick in his book 'International Law' has observed “a treaty ratified without proper observance of requirement is ipso facto invalid”. Palpably the treaty infringes jus cogens, the compelling norm in the International law, and thereby is invalid under Art. 53 of the Vienna Convention on the Laws of Treaty [Chief Prosecutor v. Kamruzzaman (2013)].
The crime of genocide defined by Raphael Lemkin means the denial of the right of existence of mankind. Underscoring the grisly idiosyncrasy of the crime the UN has adopted the convention on the prevention and punishment of crime of genocide in 1948. Art 1 of the Convention clearly defines genocide as a crime under international law and obligates the state parties to prevent and punish the crime and perpetrators thereof. The provision has by now acquired the status of International Customary law and is binding even on the state which has not acceded to it [Re Advisory opinion by ICJ .
There is universal jurisdiction to try the war criminals. The perpetrators of these crimes being hosteris humanis generis (enemy to mankind) have ceased to be national of any state. The Israeli Supreme Court has observed, “The crimes offending the whole of mankind are grave offences against the law of nations. The jurisdiction to try these crimes is universal” [Re Eichmann case]. Wheaton states in his book 'The Elements of International Law', “the judicial power of every independent state extends to the punishment of piracy and other offences against the law of nations by whomsoever and whosesoever committed”. The Supreme Court of US has observed that those who have infringed the laws of war can be tried by any state [Re Exparte Quirin 317 US].
Article 40 of the Constitution of Pakistan enjoins the state to promote international peace which necessarily presupposes immediate state endeavor to try their own war criminals who have mutilated humanity in 1971. Pakistan is party to four Geneva Conventions 1949 enjoining the state party to try the persons alleged to have committed grave breaches of the convention before its own court [Art.49 of Convention No-1, Art. 50 of Convention No-2, Art. 129 of Convention No-3 and Art.146 of Convention No-4]. Non-incorporation of these conventions into laws does not give a free license to a state to flout the obligation undertaken. The Apex Court of Australia has observed, “The fact that convention has not been incorporated into Australian law does not mean its ratification holds no significance for Australian law” [Minister of Immigration and Ethnic Affairs v. Teoh (1995)].
Pakistan may take resort Art. 6 of Genocide Convention providing that the perpetrators of genocide shall be tried by the Court of the state in whose territory the crime was committed. She can argue that Bangladesh having exhausted the opportunity cannot now force Pakistan to try them. In the 6th Committee, the delegates of several countries pointed to such a case and expounded that Art. 6 contemplated the obligation of the state in whose territory the genocide was committed but it did not affect the right of any other state to try them. The August Court of Israel has observed, “Had the Art. 6 meant to provide that those accused of genocide shall be tried only by the court of the state in whose territory the crime was committed, it would have foiled the very object of the convention” [Re Eichmann case].
No barbarity is such macabre as the odious butchery committed in Bangladesh in 1971. Canada has convicted two army personnel of Canadian armed forces for infringing the laws of war [The Queen v. Boland (1995)]. Therefore why does Pakistan endeavor to identify them with the war criminals? Should the people of Pakistan not disown them and espouse the dictates of justice?
The writer is a student of law, University of Dhaka.
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