Lawyers Practicing Anticipatory Bail In Bangladesh

Amicable bi-lateral treaties should be formed for preventing border killings – Explain & Illustrate.

Introduction

Borders define geographic boundaries of political entities or legal jurisdictions, such as governments, sovereign states, federated states and other sub national entities. Some borders—such as a state’s internal administrative borders, or inter-state borders within the Schengen Area—are open and completely unguarded.[1]

The borders are partially or fully controlled, and may be crossed legally only at designated border checkpoints. Some, mostly contentious, borders may even foster the setting up of zones. In the past, many borders were not clearly defined lines, but were neutral zones called marchlands. This has been reflected in current times with the neutral zones that were set up along part of Saudi Arabia‘s borders with Kuwait and Iraq (however, these zones no longer exist).

Now days, the concept of a marchland has been replaced by that of the clearly defined and demarcate border. For the purposes of border control, airports and seaports are also classed as borders. Most countries have some form of border control to restrict or limit the movement of people, animals, plants, and goods into or out of the country.

Border killings refer to the killings usually initiated by the security forces present at the borders who afterwards describes those killings as threats disseminated for the country. Border killings lately have been a burning issue for the whole world since extrajudicial killings are a very natural phenomenon these days.[2]

I also found that, Extrajudicial killings often target leading political, trade union, dissident, religious, and social figures and may be carried out by the state government or other state authorities like the armed forces and police.

Justification of Border Killing

The justification of border killing I found that, the border force justifies the killings by claiming that suspects were evading arrest, or that it had to fire in self-defense, but suspicion of a crime or evasion of arrest cannot alone justify the use of lethal force. The domestic and international laws are violated by the Border Security Force leading to a number of deaths of both Indian and Bangladeshi nationals.[3] I also found, human rights watch found no proof in any death it documented that the person was occupied in any activity that would justify such an extreme reaction.

A former BSF official told Human Rights Watch that about a decade ago orders were handed down to shoot at suspected smugglers at the Bangladesh border. The official said that the assumption underlying the policy was that it would deter such illegal activities. However, he agreed that those orders, instead of serving as deterrence, are now causing deaths.[4]

Offence in Border Areas

Illegal migration of Indian and Bangladeshi nationals is common. Around 20 million Bangladeshis are estimated to be residing in India illegally. This is a source of immense political tension, with Hindu political groups claiming that there is a deliberate ploy to alternate the demography of the country.[5]

I found also there are agents in both India and Bangladesh that facilitate the process, even providing assistance in securing Indian citizenship documents. Smuggling is considered the main economic activity in the area, and is thus difficult to contain. The most common is cattle smuggling from Hindu-majority India, which forbids consumption of beef, into Muslim-majority Bangladesh, where beef is part of the regular diet.

It is estimated that approximately 1.5 million cows worth over $500 million are smuggled into Bangladesh annually.[6] The smuggled cows provide more than half of the beef consumed in Bangladesh. Some estimates suggest that as many as 20,000-25,000 animals enter into Bangladesh through West Bengal daily.[7]

Problems of Border Residence

The main problem I found that, on the Indian side of the border, BSF guards restrict access through the fence, which has effectively cut off some Indian border residents from their farms or markets. In order to prevent infiltration by Bangladeshi nationals, the BSF obliges residents to surrender their identity or citizenship cards when they cross the border outposts and to claim them back on their return. Even in the border area in Murshidabad district, where the riverine plains are impossible to fence, residents have to surrender their papers at the BSF border outpost before crossing to the areas adjoining the border.[8]

The district administration or the BSF randomly determine the timings for entry and exit, controlling them access of farmers to their own land. Many villagers complain that there is little consideration for agrarian needs, and that the BSF violate their freedom of movement. Mithoo Sheikh, a young man in Murshidabad said that there are long queues as the BSF checks each identity:

Sometimes by the time we get to the field it is noon. And we have to stop work by 4 p.m. because they stop us from returning after dark. The BSF does not understand cultivation problems. We cannot water our fields at noon. Sometimes we only get water at night, but they will not let us remain in the field. If we disobey, they beat us and file false charges…We are treated as outsiders in our own country.[9]

Killing at the Border

The recent killing of two cattle traders and a teenage girl in separate incidents in the border area in the past few days is most unfortunate. While border guards on both sides have the responsibility of preventing cross-border crimes such as smuggling of illegal goods and human trafficking, this trigger-happy attitude, especially on the part of the Indian Border Security Force (BSF), has often proven irresponsible and ended in tragedy. The story of 15-year-old Felani is a case in point.[10]

As most cross-border movements of a dubious nature occur at night, floodlights and other sophisticated equipment should be set up for the job. Unprovoked and indiscriminate firing is not the solution. The Bangladesh Guideline for Border Authorities 1975 stipulates the duties of the border forces as authorized to arrest criminals and hand them over to the other side; this consideration and tolerance must be reciprocated.

Bi-Lateral Treaties

The most common mechanisms for regulating interstate labour migration are various types of bilateral agreement. A formal bilateral agreement sets out each side’s commitments and may provide for quotas. Less formal is a Memorandum of Understanding (MOU).

Most countries of destination prefer MOUs, probably because as non-binding agreements they are easier to negotiate and implement — and to modify according to changing economic and labor market conditions. Countries may sign such agreements for political reasons, to reflect friendly relations or to reinforce cooperation in managing irregular migration.[11]

Prevention of Border Killings through Treaties

The primary duty of government is to use its state machinery to improve the living condition of its citizens regardless of their racial and religious background, to provide security, to maintain internal stability, and to promote social harmony through alleviating poverty, deprivation, exploitation, and racism.

Being one of the most important state organs, the BGB is entrusted with the responsibility of protecting the lives and properties of the unarmed, innocent people living in the border areas from external state or non-state aggression. Everyone was dumbfounded by his comments that the government has no responsibility for victims of BSF’s atrocities if they have more than two children violating the state’s policy of two-child family.[12]

Bangladesh should raise its concern seriously and should strongly raise the issue with the Indian government so that trouble-mongering BSF personnel could be reined in and there is no more loss of life and dreams.

It is also necessary that Indian government at the same time comes up with an accountable mechanism for BSF and starts finding the personnel associated with these heinous activities and brings them to book.[13]

Entrenched Impunity

Human Rights Watch researchers witnessed BSF troopers shouting at villagers, calling them names, and often making them wait for hours as each person was searched and signed as they crossed BSF outposts, to reach their fields or homes which adjoin the border.[14]

BSF personnel are in theory liable to be produced before an internal court for making false accusations, or for “disgraceful conduct of a cruel, indecent or unnatural kind.” Although the BSF claims that these courts are routinely used to prosecute those that commit crimes or violate the Border Security Force Act, there are no publicly known cases in which a BSF member was convicted of a crime for a human rights abuse at the India-Bangladesh border. It is time for the Indian government, which claims to follow the rule of law and respect basic rights, to take strong steps to end abuses and hold those responsible to account.[15]

Recommendation

I found some recommendation that is talks about the prevention of border killing for the Indian side and Bangladesh side. These are given to the below:

To the Indian Government:-

ü       The  Indian Government sends a strong message to the Border Security Force (BSF) that, the perpetrators of grave human rights violations will be held to account.

ü       The all members of the security forces must fully cooperate with investigations. Those who fail to do so should face appropriate sanctions such as suspension or dismissal.

ü       Perform the Prevention of Torture Bill after removing all provisions that grant immunity to government officials from prosecution for criminal acts.

ü       Amend the Border Security Force Act to ensure that security forces personnel accused of human rights violations such as torture of civilians can be tried in civilian courts.

ü       In the self-defense, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.

ü       International law also requires security forces to give a clear warning of their intent to use firearms, and sufficient time to surrender.

ü       Amend Section 46 of the Criminal Procedure Code to make it consistent with the UN Basic Principles so that lethal force may only be used in order to protect life.

ü       Initiate investigation and prosecution by civilian authorities of BSF personnel of all ranks implicated in serious rights abuses

ü       Instruct the police to register complaints against the BSF in cases of abuses against Indian and Bangladeshi nationals.

ü       Instruct the BSF to apply guidelines as laid down by the National Human Rights Commission to investigate all cases of deaths during security operations.

ü       Establish an independent and impartial commission of inquiry into serious violations of international human rights law by the BSF.

ü       Repeal all legal provisions that require approval of the executive branch of government for prosecutions against members of the security forces to proceed, including in article 197 of the Criminal Procedure Code.

ü       Publish detailed information on all arrests, prosecutions, and convictions of BSF personnel for human rights violations and release the same information on an annual basis in the future.

ü       Ensure an effective system of vetting is in place for any members of the BSF who are proposed for promotion and/or for overseas UN peacekeeping duties, or specialized training abroad, to ensure that anyone under investigation for grave human rights violations is banned from travelling abroad.

ü       Place human rights protection mechanisms for Indian and Bangladeshi border residents at the center of any bilateral dialogue on border issues with Bangladesh.

To the Bangladeshi Government:-

  • Vigorously advocate for an end to abuses by the BSF.
  • The Bangladeshi authorities should not accept the claim that individuals involved in crime are legitimate targets of the use of lethal force or that only people who are “innocent” deserve the protection of the law.
  • Publicly order the BDR and other security forces to abide by the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.
  • Ensure that individuals or groups based in Bangladesh that are responsible for violent attacks upon Indian nationals are properly identified and prosecuted.
  • Place human rights protection mechanisms for Bangladeshi and Indian border residents at the center of any bilateral dialogue on border issues with India.[16]

Conclusion

The window of opportunity for a standard transfer in Bangladesh-India relations that Bangladesh officials have so actively drummed up will wither away unless India quickly concedes on Bangladesh’s major claims. A great deal will therefore depend on what the Indian Prime Minister has to offer when he comes on a visit to Bangladesh expected to take place early next year. The Report of the Human Rights Watch with all the negative manifestations will add extra pressure on India to relent. The ball is now in India’s court and unless India concedes, the agitation of the opposition against India will begin to gain momentum.

Bibliography

Human Rights Watch interview with former BSF official, details withheld.

Hussian, D., (March 2, 2009). “Life and death in the Bangladesh-India margins,” Open

Democracy

Islam, S, and Rahman, M, M, (February 01, 2011). No more Border Kiling The News Today

Kumar, A, Illegal Bangladeshi Migration: People Take the Mantle when the Government

gives up,” Paper No. 1391.

Magnier, M., (May 2, 2010) “Where’s the beef? Indians don’t want to know,” Los Angeles

Times

Unknown Author., (n.d). In Extrajudicial Killing Retrieved February 20, 2011 from

http://en.wikipedia.org/wiki/Extrajudicial_killing

Unknown Author., (n.d). In Extra Judicial Killing in India Bangladesh Border Retrieved

February 20, 2011 from http://www.lawyersnjurists.com/research-papers/assignments/miscellaneous/extra-judicial-killing-in-india-bangladesh-border/#_ftn22

Unknown Author., (n.d). In Problems for Border Residents Retrieved February 15, 2011

from http://www.hrw.org/en/node/94641/section/5

Unknown Author., (January 11, 2011). In Killings at the Border, Asia News Network

Retrieved February 15, 2011 fromhttp://www.asianewsnet.net/home/news.php?sec=3&id=16686

Unknown Author., (n.d). In Bilateral Agreements Retrieved February 21, 2011 from

http://pstalker.com/ilo/i-bilateral.html

Unknown Author., (n.d). Retrieved February 17, 2011 from

http://www.hrw.org/en/node/94641/section/8

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[1] See, http://en.wikipedia.org/wiki/Extrajudicial_killing (Extrajudicial Killing)

[2] An extrajudicial killing is the killing of a person by governmental authorities without the sanction of any judicial proceeding or legal process.

[3] See, http://www.lawyersnjurists.com/research-papers/assignments/miscellaneous/extra-judicial-killing-in-india-bangladesh-border/#_ftn22 (Extra Judicial Killing in India Bangladesh Border)

[4] Human Rights Watch interview with former BSF official, details withheld.

[5] See, Kumar, A, Illegal Bangladeshi Migration: People Take the Mantle when the Government gives up,” Paper No. 1391.

[6] See, Magnier, M, “Where’s the beef? Indians don’t want to know,” Los Angeles Times, May 2, 2010

[7] See, Hussian, D, “Life and death in the Bangladesh-India margins,” Open Democracy, March 2, 2009

[8] See, “India Bangla border: Fencing forces thousands in no man’s land,” Press Trust of India, January 31, 2010, http://www.hindustantimes.com/Indo-Bangla-border-Fencing-forces-thousands-in-no-man-s-land/Article1-503736.aspx

[9] See, http://www.hrw.org/en/node/94641/section/5 (Problems for Border Residents)

[10] See, http://www.asianewsnet.net/home/news.php?sec=3&id=16686 (Killings at the Border) Asia News Network, January 11, 2011

[11] See, http://pstalker.com/ilo/i-bilateral.html (Bilateral Agreements)

[12] See, http://www.bdsdf.org/forum/index.php?showtopic=33300 (A Tale of a Two Star General) Bangladesh Strategic and Development Forum, September 2, 2009

[13] See, Islam, S, and Rahman, M, M, (No more Border Kiling) The News Today, http://newstoday.com.bd/index.php?option=details&news_id=18976&date=2011-02-01

[14] Huamn Rights Watch Interview, details withheld, Murshidabad, May 3, 2010

[16] See, http://www.hrw.org/en/node/94641/section/8

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