Research on War Crimes & Genocide 1971: Bringing the Perpetrators to justice.

Submitted by –
Dip Biswas
ID –LLM 090100340
Northern University, Bangladesh

Date of submission-24.12.2009

24^th Decembe, 2009

Mr. S. M. Masum Billah
Research Supervisor &
Assistant Professor
Department of Law
Northern University, Bangladesh

Focus: Letter of Transmittal

Sir,
I am very glad to inform you that it’s a great pleasure for me to submit ‘The Research Paper’ on the topic of “War Crimes & Genocide 1971: Bringing the Perpetrators to justice”. While conducting this, I have tried my level best to prepare this ‘Research Paper’ to the required standard. I can hope that this ‘Research Paper’ will fulfill your expectation and also the demands of the Course.

I, therefore, pray and hope that you would be kind enough to go through this Research Paper for evaluation as well as marking.

I am always available for any clarification of any part of this ‘Research Paper’ at your convenience.

Thanking you.

Dip Biswas
Master of Laws; Department of Laws;
ID Number: LLM 090100340
Semester: Fall -09 (Final); Department of Law
Northern University Bangladesh.

Declaration

I, Dip Biswas, a student of ‘Master Of Laws’ program at Northern University, Bangladesh, bearing ID No. LLM 090100340 hereby, declared that-the work, presented in this ‘Research paper’ are the most outcome of the collection of information, inspection performed by me for the ‘Master Of laws’ degree under the supervision of Mr. S. M. Masum Billah, Assistant professor, Department of law, Northern University Bangladesh

I, also declared that-this thesis or, any part thereof has not been or is not being submitted elsewhere for any award of degree or, diploma.

Counter sign                                                                     Signature

…………………………                                               ………………………….
(Mr. S. M. Masum Billah)                                                      (Dip Biswas)
Research Supervisor                                                              candidate

Acknowledgement

I am immensely thankful to my Honorable Course Teacher (Research Supervisor – S. M. Masum Billah; Assistant Professor & Research Supervisor, Department of Law; Northern University, Bangladesh; for providing me with an opportunity to complete my research monograph on the very topic “War Crimes & Genocide 1971: Bringing the Perpetrators to justice” and thereby to gain a tremendous knowledge of today’s condition.

I am also grateful to Mr. A.W.M Abdul Huq (Dean, Faculty of Law & ‘Head, Department of Law; Northern University, Bangladesh) whose instructions and suggestions also helped me a lot to complete the Research Paper successfully. This Research Paper is Based on the study under taken as a part of the Master of Laws (LL.M.) Course.

I specially thanks to all of my university teachers Because of serving their advices and suggestions. Without their valuable help, it would be impossible for me to complete this Research Paper. Again I specially thank to my Research Supervisor, S. M. Masum Billah who have helped me a lot and his instructions also helped me to prepare this Research Paper By giving his valuable guidance and suggestions.

To prepare this research, I had to go to several places for collecting the necessary papers, documents and other things. I am very much pleased to have a good Behavior from them as well as their kindness. They have served me a Cot and gave me a lot of necessary documents, which helps me very much to prepare this Research Paper. I always used the Library of Northern University to complete my Research Paper. So I express my heart full gratitude to all Librarians and its staff.

Last But not least, I express my special thanks, to all of my friends who has helped and supported me expended during the research specially.

RESEARCH METHODOLOGY

To make the research paper, the instruction of our course instructor was followed. I had to personally conduct some surveys and interview some people who are knowledgeable concerning this subject.

The whole research paper has been done in an organized way. First, necessary divisions have been selected. Then, I made every possible effort to collect information required for each section. The methodology followed throughout the research paper has been pointed out bellow:

01.    Planning the whole research paper,
02.    Dividing the research paper into different sections,
03.    Taking advice from honorable course instructor regarding the collection of necessary information and collection of study materials with the help of the concerning teachers, researches, friends 4 other students, regarding persons and institutions,
04.    Collection of respective papers through internet browsing,
05.    Study and discussion with the concerned supervisor,
06.    Concentrated study through many books, journals, national and international publications about the issue.
07.    Contemplating over concentrated study,
08.    Interviewing several renowned lawyers and freedom fighters.
09.    Conducting surveys
10.    Screening the gathered information,
11.    Selecting the effective information that can be added in the paper,
12.    Updating and modifying the paper for several times

Abbreviations

TABLE OF CONTENT
CHAPTER-1
INTRODUCTORY

CHAPTER-7
CONCLUSION
BIBLIOGRAPHY
ANNEXURE
CHAPTER-1
Introductory
1. Introduction
War crimes are “violations of the laws or customs of war”; including but not limited to “murder, the ill-treatment or deportation of civilian residents of an occupied territory to slave labor camps“, “the murder or ill-treatment of prisoners of war“, the killing of hostages, “the wanton destruction of cities, towns and villages, and any devastation not justified by military necessity”. Similar concepts, which have existed for many centuries as customary law between civilized countries. Many of these customary laws were clarified in the Hague Conventions of 1899 and 1907. The modern concept of war crime was further developed under the auspices of the Nuremberg Trials based on the definition in the London Charter that was published on August 8, 1945. Along with war crimes the charter also defined crimes against peace and crimes against humanity, which are often committed during wars and in concert with war crimes.[1]

Laws of War: Laws and Customs of War on Land (Hague IV); October 18, 1907 states that “The right of belligerents to adopt means of injuring the enemy is not unlimited” and over the last century many other treaties have introduced positive laws that place constraints on belligerents. Some of the provisions, such as those in the Hague conventions, are considered to be part of customary international law, and are binding on all. Others are only binding on individuals if the belligerent power to which they belong is a party to the treaty which introduced the constraint.[2]

A person who allegedly commits a crime can always be charged until that person is alive. Unlike civil litigation or disputes, length of time does not affect crime. In other words, it does not have statutory limitation. That is why those who allegedly committed genocide, crimes against humanity or war crimes (grave breaches of the 1949 Geneva Conventions) during the Nazi Germany more than 60 years ago are being arrested and tried. In Cambodia, Khmer Rouge leaders who alleged committed crimes against humanity and turned the country into ‘killing fields’ during 1975-79 are being put on trial after 30 years by a Tribunal with the backing of the UN.

On 3^rd December, 1973, a resolution of the General Assembly was adopted underscoring the obligations of member-States of the UN in the detention, arrest, extradition and punishment of war crimes and crimes against humanity. Bangladesh is a member of the UN and it is a duty of Bangladesh to hold trials for such crimes.[3]

Given the above background, on 29th January 2009, Bangladesh Parliament adopted a resolution to try war criminals. On 25th March, the government decided to try war criminals under the 1973 International Crimes (Tribunals) Act and investigation as claimed by the government had already begun.

2. Meaning of War  Crimes
War crimes includes violations of established protections of the laws of war, but also include failures to adhere to norms of procedure and rules of battle, such as attacking those displaying a flag of truce, or using that same flag as a ruse of war to mount an attack. Attacking enemy troops while they are being deployed by way of a parachute is not a war crime. However, explicitly forbids attacking parachutists who eject from damaged airplanes, and surrendering parachutists once landed. War crimes include such acts as mistreatment of prisoners of war or civilians. War crimes are sometimes part of instances of mass murder and genocide though these crimes are more broadly covered under international humanitarian law described as crimes against humanity.[4]

War crimes are significant in international humanitarian law because it is an area where international tribunals such as the Nuremberg Trials and Tokyo trials have been convened. Recent examples are the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, which were established by the UN Security Council.[5]

Under the Nuremberg Principles, war crimes are different from crimes against peace which is planning, preparing, initiating, or waging a war of aggression, or a war in violation of international treaties, agreements, or assurances.

Under International War Tribunal Act 1972 war crime means,

War Crimes namely, violation of laws or customs of war which include but are not limited to murder, ill-treatment or deportation to slave labor 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 detenues, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity.[6]

3. Defintion of Genocide
The definitional article included in the 1948 convention stipulates:
In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.[7]

The critical element is the presence of an “intent to destroy”, which can be either “in whole or in part”, groups defined in terms of nationality, ethnicity, race or religion.  Thus, the imposition of restrictions during the nineteen-sixties and seventies on reproduction in India, through forced sterilization in many instances, or the continuing restrictions in China, do not constitute genocidal policies as the intent is to restrict the size of groups, not to destroy existing groups in whole or in part.   Policies implemented during the Third Reich respecting Jewish, Roma and Sinti groups, on the other hand, were quite clearly genocidal in terms of this article as there was a clearly stated policy indicating the presence of an intent to destroy them. Members of all these groups were processed in extermination camps, were subjected to serious bodily and mental harm, and had conditions inflicted upon them intended to bring about their physical destruction, including starvation in ghettoes, and had measures applied to them intended to prevent births within the group (sterilization).

Many experts, legal and academic, consider these criteria deficient in various respects.  Some consider that the criteria are insufficiently broad.  For instance, it excludes the physical destruction of certain sub-groups that have regularly been the victims of extensive killing programs. Usually mentioned in this context are members of political or social classes, such as the bourgeoisie, the middle classes, the Kulaks and the intelligentsia. Also, the definition focuses on the physical destruction of the group.  There have been many instances in which the group has physically survived but its cultural distinctiveness has been eradicated.  A contemporary example is the destruction of Tibetan culture by the Chinese, or that of indigenous tribes in certain countries in South America, Paraguay and Brazil, for instance.

These and other deficiencies need to be understood in the context of the background to the passage of this convention.   The term genocide is of recent derivation; etymologically, it combines the Greek for group, tribe-genos, with the Latin for killing-suicide. In 1933, at a time when neither the extensiveness nor character of the barbarous practices subsequently carried out under the auspices of the Third Reich could have been foreseen, the jurist Raphael Lemkin submitted to the International Conference for Unification of Criminal Law a proposal to declare the destruction of racial, religious or social collectivities a crime in international law.   In 1944 he published a monograph, Axis Rule in Occupied Europe, in which he detailed the exterminatory and other practices and policies pursued by the Third Reich and its allies.  He went on to argue the case for the international regulation of the “practice of extermination of nations and ethnic groups,” a practice which he referred to now as genocide.  Lemkin was also instrumental in lobbying United Nations officials and representatives to secure the passage of a resolution by the General Assembly affirming that “genocide is a crime under international law which the civilized world condemns, and for the commission of which principals and accomplices are punishable.”  The matter was referred for consideration to the UN Economic and Social Council, their deliberations culminating with the signing of the 1948 United Nations Convention on Genocide (UNCG).[8]

There are considerable disagreements among experts concerning whether a specific complex of behaviors merits the designation genocide, even leaving aside clear-cut instances of attempts at moral appropriation of the concept.  There are various reasons for this.  First, like any other legal instrument, it was the outcome of negotiations between parties that held conflicting views as to the proper scope of its constituent parts.  On this, see the analysis by Leo Kuper in his Genocide: Its For disputes between parties to be adjudicated by the International Court of Justice, because accusations of genocide are invariable made by one state against another, this has never occurred.  Consequently, there is no body of international law to clarify the parameters of the convention.[9]

A second reason for uncertainty as to how the concept can be fitted to particular complexes of behavior derives from the fact that the “ideal-typical” genocidal complex that Lemkin had in mind was the destruction of European Jewry.  This instance of genocide was quite clearly also uppermost in the minds of those who drafted and negotiated the UNCG. Precisely because this particular instance was so central to the genesis of the UNCG, its application to other situations has been problematic.  It is quite clear that the programs devised by the Nazi regime for the Final Solution of the Jewish Question lie at the extreme of any continuum of types of mass violence aimed at inflicting significant loss on members of particular groups, whether these be religious, national, ethnical or racial.  Although the massacre of Armenians by the Turks during World War I, the destruction of the intelligentsia and others by the Khmer Rouge in Cambodia during 1975-1978, and the Ukrainian famine of the 1930s share some elements with the Nazi genocidal program, there are also important differences that call into question whether they meet the criteria specified by Article II of the UNCG. [10]
4. Present Contentionus of War Crime in Bangladesh
The Bangladesh Collaborators’ (Special Tribunal) Order was enacted by the Parliament in 1972, to hold trials of those accused of collaboration with the Pakistan army.[11] This was followed by the adoption of International Crimes (Tribunal) Act of 1973 to “provide for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes and other crimes under international law”.[12]

Its jurisdiction extended to “all irrespective of nationality, who as members of any armed defense or auxiliary force, committed crimes of humanity, crimes against peace, genocide, war crimes, violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949”.

In 1973, the government prepared a list of 195 personnel of the Pakistan army who were accused of committing genocide, war crimes and crimes against humanity. Panels of senior lawyers were appointed as Special Prosecutors to prepare the cases for prosecution of war criminals. But, in March 1972, under the Geneva Conventions, the Pakistani prisoners of war in Bangladesh were transferred to the custody of the Government of India. Afterward, as international pressure mounted for the release of the POWs, and Bangladesh, India and Pakistan signed a tripartite agreement in 1974, all POWs including the 195 prisoners were handed over to the Government of Pakistan by the Government of India, on an understanding that the Government of Pakistan would try them for their crimes.

In 1974, Sheikh Mujibur Rahman, the President of Bangladesh, announced an amnesty, which exempted a large number of under trial collaborators in jail, but it is to be noted that this did not exempt those guilty of murder or rape from trial. In 1976, General Ziaur Rahman repealed the 1972 law. The special tribunals set up to try the collaborators were disbanded.[13]

Demands for trial of war criminals of 1971 have been reiterated frequently by a large number of organizations and individuals and families of the dead over the years. Following election of civilian governments in 1991 and 1996, the movement for the trial of war criminals, led by the National Coordination Committee on the Implementation of Spirit of Liberation War and Elimination of Killers and Collaborators of ’71 gained momentum.

The acts of genocide by Pakistani army personnel and the activities carried out under “Operation Searchlight” to suppress the political assertions of the people of Bangladesh have not been admitted by Pakistan. Even until the end of the war and the surrender of the Pakistan Army on 16 December, 1971, the people of Pakistan were not informed by the media or by the military leaders of the military action and its outcome.[14]

In December 1971, Z.A. Bhutto, then President of Pakistan constituted an Enquiry Commission, under the Chairmanship of Justice Hamoodur Rahman, to inquire into and find out “the circumstances in which the Commander, Eastern command, surrendered and the members of the Armed Forces of Pakistan under his command laid down their arms and a cease-fire was ordered along the borders of West Pakistan and India and along the cease-fire line in the State of Jammu and Kashmir.”

In November 2000, some sections of this report were published which triggered a strong public reaction in Pakistan demanding publication of the full report by the Government. In December 2000, the Government of Pakistan declassified the Hamoodur Rahman Commission report. Reaction amongst Pakistani citizens focused on the demand for a full official publication, for an apology to the Government of Bangladesh for its actions in 1971 and for trials against those held guilty of these charges. Thus the Joint Action Committee for People’s Rights in Lahore adopted a resolution in August 2000 for the Pakistan Government to formally apologize to the people of Bangladesh for the atrocities committed by the Pakistani Army during the War of Liberation of 1971.

In spite of the public reaction, the Pakistan Government has taken no steps to act upon the Commission’s recommendations. Hamidur Rahman Commission’s report is an important document both from the point of view of what it revealed as well as what it failed to do for the obvious reason that the commission itself had a limited mandate. It provides strong material evidence to demand a trial by a UN War Crimes Commission for the genocide, war crimes and crimes against humanity committed in Bangladesh.[15]

UN Tribunals to try war crimes committed in former Yugoslavia and Rwanda, which have successfully sentenced several persons for war crimes, have set a precedent. The Tokyo People’s Tribunal organized by a network of non-government organizations, in December 2000, brought together witnesses who accused the Emperor and the Japanese army for the crime of establishing “comfort stations” and committing sexual crimes against women in Indonesia, Philippines, China, Malaysia, etc. Bangladesh was the first amongst South Asian countries to sign the Rome Statute for the International Criminal Court in September 1999, reiterating its commitment to bring to justice those responsible for committing crimes during the Liberation War in 1971.

In Bangladesh, there has been a continuing demand for trials. Bangladesh needs to pursue justice through the international justice system, since these cannot be time-barred. Trials of war criminals of the Second World War are still taking place under the jurisdiction of different countries. Recent transformation, therefore, is an opportune moment for compilation of evidence and testimonies against individuals accused of war crimes.

The newly elected government should take concrete and systematic steps to prepare cases for trial. It may begin by collating the material submitted by the Special Prosecutors to the Ministry of Home Affairs in 1973. Several organizations and individuals have collected and published oral histories that give eye witness accounts. Ain o Salish Kendra has published a volume of women’s oral histories so have the historians at the Mukti Juddho Gobeshna Kendro, who have completed oral histories of those who fought in the war in several unions. The Liberation War Museum could coordinate efforts by concerned organizations to systematically document all such evidence of crimes, to be used in the conduct of the trial.[16]

5.  Aims and Object of the Study
The study examines the situation and problem of the present situation in Bangladesh whether the war criminals will be faced for to the trial for committing the offence against the human and humanity.

The adequacy and responsiveness of the legal and enforcement mechanisms shall be analyzed on the basis on how much of these measures have been effective in trialing, which is a demand of the people of the country. The main objectives of this research paper can be traced on as follows:
01.       To facilitate the process of bringing war criminals under trial.
02.       To promote awareness among the mass people and next generation of the country about the trial of war criminals as most of them can hardly realize the significance of conducting that trial and create an atmosphere in which some kind of national reconciliation would be feasible.
03.       To conduct campaign throughout the world be recognized by the  International community.
04.       To find a possible way out to conduct the trial that would be recognized by the international community.
05.       To facilitate the way of involving UN in the process for trying war criminals.
06.       To demolish the black complain against the Bangladeshi people from war crimes and Genocide, in 1971 and the real criminals need to come to trial.
07.       To determine the person who took part in war crime and Genocide 1971
08.       To pay the people expectation and demand of trial of war crimes and Genocide 1971
09.       To establish a permanent historical record that would inform and educate future generations.
CHAPTER -2
WAR CRIMES TRIAL THROUGHOUT THE WORLD

1. Nuremberg Trials
The Nuremberg trial In November 1945, in the German city of Nuremberg, the victors of the World War Two began the first international war crimes trial. The choice of the city was significant for it was here that the National Socialist Party held its annual rallies.

Adolf Hitler intended it to be rebuilt as the ‘party city’. Now many of the leaders of the party were on trial for their lives, only a short distance from the grand arena where they had been fêted by the German people. The 21 defendants came from very different backgrounds. Some, like Hitler’s chosen successor Hermann Goering, were senior politicians – their responsibility clear.[17]

Others were there because senior party leaders Heinrich Himmler, head of the feared SS, and Joseph Goebbels, head of propaganda – had killed themselves rather than face capture and trial. Their deputies or juniors stood on trial instead of them. But most of them were regarded by the western public, rightly or wrongly, as key playmakers in a system that had brought war to Europe and cost the lives of 50 million people.[18]

This catalogue of sin was difficult for many of the defendants to come to terms with. The charges laid at their door were extraordinary. They were collectively accused of conspiring to wage war, and committing crimes against peace, crimes against humanity (including the newly defined crime of genocide) and war crimes in the ordinary sense (abuse and murder of prisoners, killing of civilians and so on). This catalogue of sin was difficult for many of the defendants to come to terms with.

The reaction of the others covered a very wide spectrum, from confident defiance to full admission of responsibility. In the case of Rudolf Hess, Hitler’s former deputy, the reality was almost complete memory loss.

On the other hand Albert Speer, the youthful architect who rose to run Germany’s armaments effort during the war, accepted from the start the collective responsibility of the defendants for the crimes of which they were accused and tried to distance himself from Hitler’s ghostly presence at the tribunal.[19]

‘Prisoner Number One  Hermann Goering at Nuremberg Goering was captured shortly after the end of the war with large quantities of his looted artworks. He thought he could negotiate with the Allies as Germany’s most senior politician, but he found himself under arrest, stripped of everything, and held in an improvised prison camp before his transfer to Nuremberg to stand Goering insisted that everything that they had done was the result of their German patriotism. To defy the court was to protect Germany’s reputation and to maintain their loyalty to their dead leader.

From the start Goering was determined to dominate the other prisoners and make them follow his line of defence. With the start of the trial, Goering assumed at once the informal role as leader and spokesman for the whole cohort of prisoners. He was given the most prominent position in the dock.[20]

When it came to his cross-examination he prepared carefully and in the opening exchanges with the American chief prosecutor Robert Jackson he emerged an easy winner.

Goering was found guilty on all the charges laid against him and condemned to death. He regarded the whole trial as simply a case of victors’ justice and had not expected to escape with his life. At the very end he cheated his captors. On 14 October 1946, the night before he was to be executed, he committed suicide with a phial of cyanide either hidden in his cell or smuggled in by a sympathetic guard.[21]

The ‘Decent Nazi’ Albert Speer in his cell at Nuremberg. Speer was the opposite of Goering in almost every respect. For some time he had not expected to be one of the major war criminals.

From the start he posed as an efficient and helpful technocrat, willing to give detailed information quite voluntarily on German weapons, economic performance and strategy. He was held separately from the other war criminals and was transferred to Nuremberg only in the autumn when it was clear that he was one of those chosen for trial.[22]

Despite the reservations of his defense lawyer, Speer decided that his best defence was to admit his share of collective responsibility for the crimes of the regime and to distance himself from Hitler, a man who Speer freely admitted had once held him in thrall like all the rest. At the same time in his interrogations and cross-examinations, he seldom expressed his individual guilt. He succeeded in presenting himself as part of the system, but not a driving force.
Just before the trial opened he sent a four-page letter to Robert Jackson reminding him again of just how useful he had been as a source of intelligence and technical information since his capture. He posed as an efficient and helpful technocrat, willing to give detailed information quite voluntarily. Speer was bound to clash with Goering. He resented Goering’s efforts to dominate the prisoners and to dictate the course of their defence. When Goering was separated from the other prisoners in February, Speer was free to talk openly with them about the crimes of the regime.

Speer added to the division when he dramatically revealed early in the trial that at the very end of the war he had tried to find a way to assassinate Hitler by pouring poison gas into his underground bunker. The plot was abortive, but it again presented Speer to the prosecution as someone different from the rest of the defendants.

When Speer was cross-examined he got off more lightly than others. At the end of the trial, even though he had been responsible for the mass exploitation of forced foreign labour, he was given a 20-year sentence. The man who supplied the labour, Fritz Sauckel, was executed.[23]

The Speer story has remained an enigma. No doubt he benefited from his pose as a technical manager (whose social background was not very different from those who were trying him) and from his willingness to confess responsibility. The extent to which he manipulated his story to win sympathy or genuinely believed that the regime he served was criminal is still open to conjecture.[24]

2. Tokyo trial
May 3, 1946 to November 12, 1948, All Japanese Class A war criminals were tried by the International Military Tribunal for the Far East (IMTFE) in Tokyo. The prosecution team was made up of justices from eleven Allied nations: Australia, Canada, China, France, Great Britain, India, the Netherlands, New Zealand, the Philippines, the Soviet Union and the United States of America. The Tokyo trial lasted two and a half years, from May 1946 to November 1948. Other war criminals were tried in the respective victim countries. War crime trials were held at ten different locations in China.[25]

The Indictment
Of the eighty (80) Class A war criminal suspects detained in the Sugamo prison after 1945, twenty-eight (28) men were brought to trial before the IMTFE. The accused included nine civilians and nineteen professional military men:

The Verdict
Two Yosuke Matsuoka and Osami Nagano) of the twenty-eight defendants died of natural causes during the trial. One defendant (Shumei Okawa) had a mental breakdown on the first day of trial, was sent to a psychiatric ward and was released in 1948 a free man. The remaining twenty-five (25) were all found guilty, many of multiple counts. Seven (7) were sentenced to death by hanging, sixteen (16) to life imprisonment, and two (2) to lesser terms. All seven sentenced to death were found to be guilty of inciting or otherwise implicated in mass-scale atrocities, among other counts. Three of the sixteen sentenced to life imprisonment died between 1949 and 1950 in prison. The remaining thirteen (13) were paroled between 1954 and 1956, less than eight years in prison for their crimes against millions of people.

Two former ambassadors were sentenced to seven and twenty years in prison. One died two years later in prison. The other one, Shigemitsu, was paroled in 1950, and was appointed foreign minister in 1954.[28]

Summary Of Convicted Class A War Criminals
Seven (7) sentenced to death:
Doihara, General Kenji (1883-1948). Commander, Kwantung Army, 1938-40; Supreme War Council, 1940-43; army commander in Singapore, 1944-45. Deeply involved in the army’s drug trafficking in Manchuria. Later ran brutal POW and internee camps in Malaya, Sumatra, Java and Borneo. Convicted on counts 1, 27, 29, 31, 32, 35, 36, 54.

Hirota, Baron Koki (1878-1948). Ambassador to the Soviet Union, 1928-31; foreign minister, 1933-36; premier, 1936-37. Was foreign minister during the Rape of Nanking and other atrocities perpetrated by the army. As premier, he led his cabinet in planning the invasions of Southeast Asia and the Pacific islands, in addition to continuing the undeclared war against China. Convicted on Counts 1, 27, 55.

Itagaki, General Seishiro (1885-1948). Chief of staff, Kwantung Army, 1936-37; minister of war, 1938-39; chief, army general staff, 1939; commander in Korea, 1941; Supreme War Council, 1943; commander in Singapore, 1945. Troops under his command in China and elsewhere terrorized prisoners and civilians. Was responsible for prison camps in Java, Sumatra, Malaya, Borneo and elsewhere. Convicted on Counts 1, 27, 29, 31, 32, 35, 36, 54.[29]

Kimura, General Heitaro (1888-1948). Chief of staff, Kwantung Army, 1940-41; vice minister of war, 1941-43; Supreme War Council, 1943; army commander in Burma, 1944-45. Helped plan the China and Pacific wars, including surprise attacks. Involved in the brutalization of the Allied POWs and was the field commander in Burma when civilian and POW slave labor built and died on the Siam-Burma Railway. Convicted on Counts 1, 27, 29, 31, 32, 54, 55.

Matsui, General Iwane (1878-1948). Personal appointee of the emperor to the Geneva Disarmament Conference, 1932-37; commander, China Expeditionary Force, 1937-38. Troops under his overall command were responsible for the Rape of Nanking in 1937 and other atrocities. He retired in 1938 and then ceased to play an active role in military affairs. Convicted on Count 55. He was one of 14 Class A war criminals who were secretly enshrined as “matyrs” at the Yasukuni Shrine, which is dedicated to Japan’s war dead and is Japan’s most revered Shinto temple.[30]

Muto, General Akira (1892-1948). Vice chief of staff, China Expeditionary Force, 1937; director, military Affairs Bureau, 1939-42; army commander in Sumatra, 1942-43; army chief of staff in the Philippines, 1944-45. Troops under his command participated in both the Rape of Nanking and the Rape of Manila. Convicted on Counts 1, 27, 29, 31, 32, 54, 55.

Tojo, General Hideki (1884-1948). Chief, Manchurian secret police, 1935; councillor, Manchurian Affairs Bureau, 1936; chief of staff, Kwantung Army, 1937-38; vice minister of war, 1938; minister of war 1940-44; premier, 1941-44. Considered the arch-criminal of the Pacific War. Tojo assumed full responsibility for all the actions of his government and the military during the war. Convicted on Counts 1, 27, 29, 31, 32, 33, 54.[31]

3. Adlof Eichman Trial

Although several prominent U.S. law firms volunteered to represent Eichmann, he asked for Dr. Robert Servatius to represent him. Servatius was a well-known lawyer from Cologne who had been a defense counselor at the Nuremberg trials. But Eichmann could not afford him. The Israeli government agreed to pay the $30,000 fee and the Servatius arrived in October of 1960 to meet Eichmann for the first time, and plan the defense strategy. He was assisted by Dieter Wechtenbruch, a young attorney from Munich.

The verdict and sentence
For four months. the Trial of Adolf Eichmann had dominated Israeli life. For most people, Eichmann’s guilt was never in doubt. The real question was, how to punish one man who had cause the deaths of millions.

Although the world had known about Nazi war crimes, it was not until the Eichmann trial that many people became truly aware of the “The Holocaust”. For a large section of the Israeli public, almost nothing was known about the Shoah prior.

On December 11, 1961, after a four-month recess, the three judges returned to their bench with a verdict. It had been a year and a half since Eichmann’s capture, and 16 years since the liberation of the Nazi camps. The time had come for Eichmann to be judged.

Eichmann was found Guilty of all 15 counts against him.

4. RWANDA TRIBUNAL
In November 1994 the Security Council of the United Nations adopted Resolution 955 creating the International Criminal Tribunal for Rwanda. The tribunal was authorized to prosecute individuals responsible for genocide and other serious violations of humanitarian law during the 1994 civil war in Rwanda. Another express purpose of the tribunal was to encourage the process of national reconciliation in Rwanda and the maintenance of peace in the region. The tribunal is based in Arusha, Tanzania, and consists of nine trial judges from different nations, elected by the UN General Assembly. The tribunal shares appellate judges with the International Criminal Tribunal for the former Yugoslavia.

The civil war in Rwanda began in 1994, after the death of Rwandan president Juvenal Habyarimana sparked fighting between the nation’s two chief ethnic groups, the Hutu and Tutsi. Habyarimana was a Hutu. An estimated 500,000 to I million people, mostly Tutsi, were killed during the war. The Hutu-dominated Rwandan army was accused of genocide against the Tutsi.[35]

The first trial started in October 1996. In May 1998 former Rwandan prime minister Jean Kambanda pleaded guilty to multiple charges of genocide and crimes against humanity and was sentenced to life imprisonment. Jean-Paul Akayesu, who was tried and found guilty of genocide and crimes against humanity, was also sentenced to life imprisonment. Another man, Omar Serushago, was sentenced to 15 years in prison for similar crimes. These convictions marked the first instances of an international court finding individuals guilty of the crime of genocide.[36]

After a six-year trial that began in 2002, one of the masterminds of the Rwandan genocide, Colonel Theoneste Bagosora, and two other military officers were convicted in December 2008 of genocide, crimes against humanity, and war crimes. They were sentenced to life imprisonment. Bagosora was the highest-ranking authority in the Rwandan Defense Ministry at the time the genocide began and personally ordered the murders of leading government officials, including the prime minister and the president of the Constitutional Court.
5. SIERRA LEONE TRIBUNAL
In 2002 the UN and the Sierra Leone government jointly established a war crimes tribunal, the Special Court for Sierra Leone, to try individuals who had committed atrocities during Sierra Leone’s civil war, which lasted from  1991  to 2000. Unlike the tribunals for the former Yugoslavia and Rwanda, which are administered by the UN and composed of UN-appointed judges and prosecutors, the Special Court is jointly administered by the UN and the Sierra Leone government and contains a mix of Sierra Leonean and international judges. The court has jurisdiction over serious violations of international humanitarian law and certain Sierra Leonean criminal laws. To avoid placing an undue burden on the court, its jurisdiction is limited to crimes committed since November 30, 1996.[37]

Sierra Leone’s civil war began in 1991 when a rebel group, the Revolutionary United Front (RUF), launched a violent campaign against the government. Tens of thousands of people were killed in the ensuing war, in which rebel forces terrorized the country by raping and mutilating thousands of civilians, often hacking off their limbs. Rebels also abducted children and forced them into combat. The RUF was reportedly supported by the government of Charles Taylor in neighboring Liberia. The civil war ended in 2000.

In 2003 the Special Court issued its first indictments. The court charged seven people, including rebel leader Foday Sankoh and Internal Affairs Minister Sam Hinga Norman, with murder, rape, extermination, sexual slavery, conscription of children into an armed force, and other crimes. Sankoh died in July 2003 while in UN custody. The same year Taylor lost power in Liberia and went into exile in Nigeria. In 2006 Nigeria deported Taylor to The Hague to face charges before the Special Court. The charges included murder, sexual violence, using children as soldiers, enslavement, and terrorizing the civilian population of Sierra Leone.¹¹ The prosecution alleged that Taylor had supplied the RUF with training, money, arms, and ammunition with the goal of sharing power over Sierra Leone and gaining access to its diamond trade. Taylor’s trial began in June 2007, but he refused to attend the proceedings.

The Nuremberg and other war crimes trials were a notable step in the evolution of international penal law. The standing of the trials suffered sharply, however, because the proceedings were carried out under auspices of victorious powers and the charges were brought only against the nationals of vanquished Germany and Japan. Nevertheless, the principles applied in the Nuremberg and Tokyo trials helped to strengthen international law and the judicial mechanisms for its enforcement. Also, the United Nations has ratified the general principles of the trials. The use of international war crimes tribunals in the former Yugoslavia, in Rwanda, and in Sierra Leone extends the principles that were the basis of the other war crimes trials to the treatment of civilians in conflicts involving only one nation. Recent war crimes trials have also established the principle that even the victors in a violent conflict are subject to criminal prosecution. Them into combat. The RUF was reportedly supported by the government of Charles Taylor in neighboring Liberia. The civil war ended in 2000.

In 2003 the Special Court issued its first indictments. The court charged seven people, including rebel leader Foday Sankoh and Internal Affairs Minister Sam Hinga Norman, with murder, rape, extermination, sexual slavery, conscription of children into an armed force, and other crimes. Sankoh died in July 2003 while in UN custody. The same year Taylor lost power in Liberia and went into exile in Nigeria. In 2006 Nigeria deported Taylor to The Hague to face charges before the Special Court. The charges included murder, sexual violence, using children as soldiers, enslavement, and terrorizing the civilian population of Sierra Leone.¹¹ The prosecution alleged that Taylor had supplied the RUF with training, money, arms, and ammunition with the goal of sharing power over Sierra Leone and gaining access to its diamond trade. Taylor’s trial began in June 2007, but he refused to attend the proceedings.
The Nuremberg and other war crimes trials were a notable step in the evolution of international penal law. The standing of the trials suffered sharply, however, because the proceedings were carried out under auspices of victorious powers and the charges were brought only against the nationals of vanquished Germany and Japan. Nevertheless, the principles applied in the Niirnberg and Tokyo trials helped to strengthen international law and the judicial mechanisms for its enforcement. Also, the United Nations has ratified the general principles of the trials. The use of international war crimes tribunals in the former Yugoslavia, in Rwanda, and in Sierra Leone extends the principles that were the basis of the other war crimes trials to the treatment of civilians in conflicts involving only one nation. Recent war crimes trials have also established the principle that even the victors in a violent conflict are subject to criminal prosecution.[38]

CHAPTER-III
INTERNATIONAL LAW & TRIALS OF WAR CRIMINALS IN BANGLADESH

Jurisdiction of the ICC
The jurisdiction of the ICC is prospective and is not retrospective. This means that the Court is competent to try persons charged with international crimes committed on or after 1st July, 2002. In view of this, the Pakistani military officers who are alleged to have committed genocide, crimes against humanity and war crimes on Bangladeshi people in 1971 cannot be put on trial before the Court.

The ICC is not the Court of first call. It is a Court of last resort. Under the Rome Statute, the Court will only step in when countries are unwilling or unable to put on trial persons charged with genocide, crimes against humanity and war crimes. The UN Security Council is also competent to refer cases to the ICC. The bottom line is that no one alleged to have committed the heinous international crimes should escape from justice.[40]

The Court has independent prosecutors and they must convince a pre-trial chamber of three judges of the ICC that alleged international crimes have been thoroughly investigated to ensure that politically motivated or frivolous charges are not brought before the Court. Furthermore the UN Security Council may put off a trial for 12 months, a blocking move that can be repeated indefinitely. Enough safeguards contain in the Rome Statute so that frivolous or politically motivated charges are dismissed.[41]

2. Ratification of the Rome Statute for Bangladesh
Bangladesh people had been victims of genocide, crimes against humanity and war crimes in 1971 by the Pakistani military personnel. As a result, 10 million people had to take refuge in India. Had there been the ICC, the 195 senior Pakistani military officers charged with the heinous crimes in Bangladesh would not have escaped from justice.

Bangladesh participated the 1998 Rome Conference and has signed up the Rome Statute. International community expects that Bangladesh, being a country with first hand experience of genocide, crimes against humanity and war crimes in 1971, is one of the countries that will ratify the Rome Statute. By ratification, Bangladesh may demonstrate that it adheres to the rule of law and firmly believes that persons charged with international crimes will be put on trial before the ICC. Furthermore as of June 2002, 69 countries have already ratified the Statute.
Many believe that there could be a concern in some quarters that Bangladesh civil and military officers that are engaged in UN peacekeeping missions in various parts of the world may be put on trial before the ICC for alleged international crimes. However it may be borne in mind that the ICC is not the first jurisdiction for trial. It comes in picture only if Bangladesh does not put on trial its citizens in Bangladesh courts for the alleged crimes committed in other countries. Under criminal law, Bangladesh has personal jurisdiction over its national in overseas and is competent to try them in national courts for crimes allegedly committed overseas.[42]

3. Doctrine of Jus Cogens
Latin meaning “compelling law.” This “higher law” must be followed by all countries. For example, genocide or slave trade may be considered to go against jus cogens, due to peremptory norms. The 1986 Vienna Convention on the Law of Treaties affirmed jus cogens as an accepted doctrine in international law.

States have used the concept of jus cogens in their efforts to achieve reforms in the existing law and international legal order. In international criminal law, jus cogens refers to the legal duties that arise in connection with high profile crimes, including the duty to prosecute or extradite, the non-applicability of statutes of limitations, the non-applicability of any immunities up to and including Heads of State, the non-applicability of the defense of “obedience to superior orders”, and universal jurisdiction over perpetrators of such crimes.[44]

4. Doctrine of Erga  Omnes
Erga omnes (in relation to everyone) is frequently used in legal terminology describing obligations or rights toward all. For instance a property right is an erga omnes right, and therefore enforceable against anybody infringing that right. An erga omnes right (a statutory right) can here be distinguished from a right based on contract, which is only enforceable against the contracting party.

In international law it has been used as a legal term describing obligations owed by states towards the community of states as a whole. An erga omnes obligation exists because of the universal and undeniable interest in the perpetuation of critical rights (and the prevention of their breach). Consequently, any state has the right to complain of a breach. Examples of erga omnes norms include piracy, genocide, slavery, and racial discrimination. The concept was recognized in the International Court of Justice’s decision in the Barcelona Traction case.

“… an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature, the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes. Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law…….others are conferred by international instruments of a universal or quasi-universal character.”[45]

It is suggested that Investigating Agency or Fact-Finding Committee is to be set up whose task will be to gather all materials, documents in support of the evidence to be submitted to the Tribunal. The materials may be collected from within the country or abroad. In this connection, the UN can assist the Fact-Finding committee on what kind of evidentiary materials are required for the trial.

In overseas during the Liberation War, international community was involved in reporting and monitoring the situation and there are many materials abroad such as possessing materials of evidentiary values resting in broadcast in radios, human rights organisations, university centres of genocide and human rights (for example Tutgers University and Yale University in the USA) and individuals.

In the case of current on-going Camobodian war crime trial, some crucial evidentiary documents that once thought missing were reportedly discovered by the Yale University Genocide Research Centre. Bangladesh must explore such possibilities to gather and collate as much materials as possible from abroad for trial.

The government may seriously consider preparing a White Paper on the reasons for holding trials for such horrible and senseless crimes committed during the Liberation War of 1971. A copy of the White Paper may be distributed to all foreign resident diplomatic missions in Dhaka. Furthermore, the government may embark on diplomatic efforts through our missions overseas to explain the need and the popular demand for this trial to cross section of public including civil society and media abroad, eliminating possible mis-perception that the trial is a policy of revenge and retaliation. To demonstrate the commitment to trial of war crimes, it is appropriate that Bangladesh ratifies the Statute of International Criminal Court of 1998 (Bangladesh signed it) and the ratification will show to the international community Bangladesh’s firm resolve that war crimes must not and cannot escape unpunished. Crimes against humanity, war crimes and genocide are the gravest crimes in international law and are condemned by all UN members. The effective punishment is an important element in the prevention and recurrence of such odious crimes and for protection of the inherent dignity of human person.[51]

CHAPTER-5
PROCEDURE OF TRAILS OF WAR CRIMINALS IN BANGLADESH
01. Applying “The International Crimes (Tribunals) Act 1973
The moral obligation to ensure trial of war criminals, many countries of the world have enacted their own laws regarding such crimes. In Bangladesh, the International Crimes (Tribunal) Act was enacted in 1973 to ensure trials of war crimes, crimes against humanity, against peace and perpetration of genocide.

The 1973 Act describes any action which imposes war on a people, killings, rape, torture, detention, destruction or looting of property or aiding and abetment of or complicity in or conspiracy to commit these crimes, for reasons of political beliefs, religious faith, race, language and culture, as war crimes, crimes against humanity and peace, and genocide.

The Act has provisions for the formation of special tribunals and it makes it permissible for the use of newspaper reports of the war period, written documents such as books etc. as evidence. These trials definitely can take place under the International Crimes (Tribunal) Act and relevant sections of the Bangladesh Criminal Procedure Code. All laws relevant to the subject, which have been repealed in the past, be revived and arrangements be made so that trials can take place under those laws as well.[52]

The International Crimes (Tribunals) Act 1973 has been protected by an amendment of the Constitution of Bangladesh ( Article 47A) so that the Supreme Court could not term the Act unconstitutional for being counter to any of the fundamental rights. Furthermore an attempt to commit, instigates, and conspires to commit and conniving in not preventing such crimes will be considered as crimes under the Act.

The law contains provisions of constituting tribunals, (each tribunal consisting of a chairperson and not less two and not more than four), appointment of chief prosecutor and prosecutors, establishment of an Agency for the purpose of investigation into such crimes, punishment and giving legal aid to accused. The law also recognizes the right of the accused to appeal against the verdict of the Tribunal to the Appellate Division of the Supreme Court. The law makes it clear that the proceedings of the Tribunal shall be in public (Section 10 of the Act). This is for the sake of transparency, fairness and justice. Justice must not only be done but seen to be done.

The Act was enacted in 1973. In the 90s, Bangladesh has become party to many international human rights conventions/treaties. Some legal experts argue that taking into account of the provisions of the 1966 International Covenant on Civil and Political Rights, in particular Articles 9 (arrest and speedy trial), and Articles 14 and 15 (the right of the accused), Sections 11 (power of the Tribunal), Section 17 (right of the accused) and Section 21 (right of appeal) may be revisited so as to ensure that they conform with provisions of international human rights conventions/treaties.

02. Fact-finding committee (FFC)
Prior to setting up the tribunals, a fact- finding committee is set up whose task will be gather all materials, documents in support of the evidence to be submitted to the Tribunal. The materials may be collected from within the country or abroad. In this connection, the UN can assist the fact -finding committee on what kind of evidentiary materials are required for the trial.

In overseas during the Liberation War, international community was involved in reporting and monitoring the situation and there are many materials abroad such as possessing materials of evidentiary values resting in broadcast in radios, human rights organizations, university centers of genocide and human rights (for example Tutgers University and Yale University in the USA) and individuals.

In the case of current on-going Camobodian war crime trial, some crucial evidentiary documents that once thought missing were reportedly discovered by the Yale University Genocide Research Centre. Bangladesh must explore such possibilities to gather and collate as much materials as possible from abroad for trial. Bangladesh must explore such possibilities to gather and collate materials for prosecution from abroad.

03. Setting up a Tribunal Under the Crimes Act, 1973
The first one is to set up a tribunal, appointment of prosecutors and setting up of investigation agency. This is the easiest part to do by the government. The law provides to file a complaint to the investigation agency and unless the investigation agency is set up, no one lodge a complaint under this law. However relatives can filed a FIR for a murder case against individuals under the country’s Penal Code and in fact it was reported on December 15 1993, a murder case lodged against some people known as war criminals in a magistrate’s court. The result of the case is not known or reported,[53] The reality is that the tribunal cannot work until prosecutors submit the charges to the Tribunal.

But the prosecutors can only submit a formal charge until the Investigation officers complete their investigation and a prima facie case has been made against a person. In this regard, The Government may, by notification in the official Gazette, 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 of Bangladesh or has been a Judge of any High Court or Supreme Court which at any time was in existence in the territory of Bangladesh or who is qualified to be a member of General Court Martial under any service law of Bangladesh may be appointed as a Chairman or member of a Tribunal. The permanent seat of a Tribunal shall be in Dhaka: Provided that a Tribunal may hold its sittings at such other place or places as it deems fit. If any member of a Tribunal dies or is, due to illness or any other reason, unable to continue to perform his functions, the Government may, by notification in the official Gazette, declare the office of such member to be vacant and appoint thereto another person qualified to hold the office. If, in the course of a trial, any one of the members of a Tribunal is, for any reason, unable to attend any sitting thereof, the trial may continue before the other members. A Tribunal shall 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 Dhaka to revert to 1973 act for war criminals trial.

If, upon any matter requiring the decision of a Tribunal, there is a difference of opinion among its members, the opinion of the majority shall prevail and the decision of the Tribunal shall be expressed in terms of the views of the majority. Neither the constitution of a Tribunal nor the appointment of its Chairman or members shall be challenged by the prosecution or by the accused persons or their counsel.[54]
04. Prosecutor & Investigation Agency
The Government may appoint one or more persons to conduct the prosecution before a Tribunal on such terms and conditions as may be determined by the Government; and every such person shall be deemed to be a Prosecutor for the purposes of this Act. The Government may designate one of such persons as the Chief Prosecutor.

The Government may establish an Agency for the purposes of investigation into crimes specified in section 3; and any officer belonging to the Agency shall have the right to assist the prosecution during the trial. Any person appointed as a Prosecutor is competent to act as an Investigation Officer and the provisions relating to investigation shall apply to such Prosecutor. Any Investigation Officer making an investigation under this Act may by order in writing, require the attendance before himself of any person who appears to be acquainted with the circumstances of the case; and such person shall attend as so required. Any Investigation Officer making an investigation under this Act may examine orally any person who appears to be acquainted with the facts and circumstances of the case. Such person shall be bound to answer all questions put to him by an Investigation Officer and shall not be excused from answering any question on the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such person.[55]

Provided that no such answer, which a person shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding. The Investigation Officer may reduce into writing any statement made to him in the course of examination under this section. Any person who fails to appear before an Investigation Officer for the purpose of examination or refuses to answer the questions put to him by such Investigation Officer shall be punished with simple imprisonment which may extend to six months, or with fine which may extend to Taka two thousand, or with both. Any Magistrate of the first class may take cognizance of an offence punishable upon a complaint in writing by an Investigation Officer. Any investigation done into the crimes specified in section 3 shall be deemed to have been done under the provisions of this Act.[56]

05. The Commencement of Proceedings
The proceedings before a Tribunal shall commence upon the submission by the Chief Prosecutor, or a Prosecutor authorized by the Chief Prosecutor in this behalf, of formal charges of crimes alleged to have been committed by each of the accused persons. The Tribunal shall thereafter fix a date for the trial of such accused person. The Chief Prosecutor shall, at least three weeks before the commencement of the trial, furnish to the Tribunal a list of witnesses intended to be produced along with the recorded statement of such witnesses or copies thereof and copies of documents which the prosecution intends to rely upon in support of such charges. The submission of a list of witnesses and documents under sub-section (3) shall not preclude the prosecution from calling, with the permission of the Tribunal, additional witnesses or tendering any further evidence at any stage of the trial: Provided that notice shall be given to the defence of the additional witnesses intended to be called or additional evidence sought to be tendered by the prosecution. A list of witnesses for the defence, if any, along with the documents or copies thereof, which the defence intends to rely upon, shall be furnished to the Tribunal and the prosecution at the time of the commencement of the trial.[57]

06. PROCEDURE OF TRIAL
The following procedure shall be followed at a trial before a Tribunal, namely:-
(a)           the charge shall be read out;
(b)           the Tribunal shall ask. each accused person whether he pleads guilty or not-guilty;
(c)           if the accused person pleads guilty, the Tribunal shall record the plea, and may, in its discretion, convict him thereon;
(d)           the prosecution shall make an opening statement;
(e)           the witnesses for the prosecution shall be examined, the defence may cross-examine such witnesses and the prosecution may re-examine them;
(f)           the witnesses for the defence, if any, shall be examined, the prosecution may cross-examine such witnesses and the defence may re-examine them;
(g)           the Tribunal may, in its discretion, permit the party which calls a witness to put any question to him which might be put in cross-examination by the adverse party;
(h)           the Tribunal may, in order to discover or obtain proof of relevant facts, ask any witness any question it pleases, in any form and at any time about any fact; and may order production of any document or thing or summon any witness, and neither the prosecution nor the defence shall be entitled either to make any objection to any such question or order or, without the leave of the Tribunal, to cross-examine any witness upon any answer given in reply to any such question;
(1)        The prosecution shall first sum up its case, and thereafter the defence shall sum up its case:
Provided that if any witness is examined by the defence, the prosecution shall have the right to sum up its case after the defence has done so;
(j) the Tribunal shall deliver its judgement and pronounce its verdict.
(2) All proceedings before the Tribunal shall be in English.
(3) Any accused person or witness who is unable to express himself in, or does not understand, English may be provided the assistance of an interpreter.
(4) The proceedings of the Tribunal shall be in public:
Provided that the Tribunal may, if it thinks fit, take proceedings in camera.[58]

07. PRE-TRIAL CHAMBER
Another idea has been argued is that when the tribunal is set up, a pre-trial chamber (mechanism used by ICC) may be established consisting of some members of Tribunal to examine the prima facie evidence with a view to finding whether there is a case to answer for the accused.

08. Critical Analysis of International Crimes Tribunal Act, 1973
The International Crimes (Tribunals) Act 1973 has been protected by an amendment of the Constitution of Bangladesh. so that the Supreme Court could not term the Act unconstitutional for being counter to any of the fundamental rights.[59]

The Act has defined the crimes against humanity, anti-peace crimes, genocide, war crimes, breaches of rules of the Geneva Conventions of 1949 during armed conflicts, any crime under international law. It also embraces crimes such as murder, torture, ousting any civilian from Bangladesh territory, considering him a slave or with any other objective, looting personal or public property and damage to towns and villages in the absence of military necessity.[60]

Furthermore an attempt to commit, instigate, and conspire to commit and conniving in not preventing such crimes will be considered as crimes under the Act.
The law contains provisions of constituting tribunals, (each tribunal consisting of a chairperson and not less two and not more than four), appointment of chief prosecutor and prosecutors, establishment of an Agency for the purpose of investigation into such crimes, punishment and giving legal aid to accused. The law also recognises the right of the accused to appeal against the verdict of the Tribunal to the Appellate Division of the Supreme Court.[61]

The above mentioned procedure fully consistent with the  war crimes perspective in Bangladesh. If the mentioned procedure will be followed it will foster the proceeding of war crime tribunal. If it is followed in trial proceedings no bar will raise a against the International war crimes tribunal Act 1973.

Not only that, if the procedure will maintain the War Crime Tribunal will be accepted and reach the International Standard.

The law makes it clear that the proceedings of the Tribunal shall be in public This is for the sake of transparency, fairness and justice. Justice must not only be done but seen to be done.
CHAPTER-6
THE INITIATIVES OF THE PRESENT GOVERNMENT

01. GOVERNMENTAL ACTION IN THIS REGARD

Bangladesh may request the International Criminal Court to put on trial Pakistani forces for alleged war crimes. The alleged perpetrators of the atrocities among the Pakistani forces were not in Bangladesh now, so Dhaka needed international assistance to bring them to justice.

An inter-ministry meeting comprising representatives from Bangladesh’s ministry of law, home affairs ministry, foreign affairs ministry and liberation war affairs ministry, was held some days ago to examine the best possible way to bring war criminals to justice.

More than 80,000 officers and soldiers of the Pakistani army and the paramilitary and police forces and 13,000 civilians were repatriated from Bangladesh after their surrender to the allied forces led by the Indian army on December 16, 1971.

In a goodwill gesture, India – which had given all-out support to Bangladesh during the war -unilaterally decided not to try the prisoners of war for war crimes and released them under the July 3, 1972 Simla Agreement with Pakistan. Bangladesh was not a party to the agreement.

That the government would do everything possible to bring the war criminals, whoever they may be, to justice in a transparent manner so that no one could question the fairness of the trials.

Bangladesh has formally sought assistance from the United Nations to ensure that investigation and prosecution of war criminals can take place in conformity with international standards.

It also requested the UN to send a panel of experts to assist Bangladeshi authorities, which are intending to try the criminals under the International Crimes Tribunal Act of 1973, a law Bangladesh had enacted two years of its liberation.
The UN has also assured Bangladesh that it would send experts to share their experiences to help Bangladesh avoid possible errors as a few other countries are being criticized for their mistakes in prosecuting war crimes.[62]

02. HELP FROM INTERNATIONAL COMMUNITY
The government may seriously consider preparing a White Paper on the reasons for holding trials for such horrible and senseless crimes committed during the Liberation War of 1971. A copy of the White Paper may be distributed to all foreign resident diplomatic missions in Dhaka. Furthermore, the government may embark on diplomatic efforts through our missions overseas to explain the need and the popular demand for this trial to cross section of public including civil society and media abroad, eliminating possible miss-perception that the trial is a policy of revenge and retaliation.

To demonstrate the commitment to trial of war crimes, it is appropriate that Bangladesh ratifies the Statute of International Criminal Court of 1998 (Bangladesh signed it) and the ratification will show to the international community Bangladesh’s firm resolve that war crimes must not and cannot escape unpunished.

Crimes against humanity, war crimes and genocide are the gravest crimes in international law and are condemned by all UN members. The effective punishment is an important element in the prevention and recurrence of such odious crimes and for protection of the inherent dignity of human person.[63]

The alleged war criminals who sided with what was then West Pakistan committed murder, rape and arson as they fought against East Pakistan’s struggle to become the independent country of Bangladesh. The government said three million people were killed during the war. A private group, which has investigated the conflict, has blamed 1,775 people, including top Pakistani generals and local Islamists allied.

03. RESOLUTION ADOPTED IN PARLIAMENT
Crime, although committed against a person, is an offence against law and order of a State and that is why it constitutes a crime against a State and State prosecutors (public prosecutors) pursue a criminal case. War crimes, genocide and crimes against humanity are offences against humankind because it denigrates human dignity. That is why every country has an obligation under international law to try individuals who allegedly perpetrated such crimes, irrespective of the fact whether such crimes were committed in that State or not.

A person who allegedly commits a crime can always be charged until that person is alive. Unlike civil litigation or disputes, length of time does not affect crime. In other words, it does not have statutory limitation. That is why those who allegedly committed genocide, crimes against humanity or war crimes (grave breaches of the 1949 Geneva Conventions) during the Nazi Germany more than 60 years ago are being arrested and tried. In Cambodia, Khmer Rouge leaders who alleged committed crimes against humanity and turned the country into ‘killing fields’ during 1975-79 are being put on trial after 30 years by a Tribunal with the backing of the UN.

On 3rd December, 1973, a resolution of the General Assembly (Resolution number 3074) was adopted underscoring the obligations of member-States of the UN in the detention, arrest, extradition and punishment of war crimes and crimes against humanity. Bangladesh is a member of the UN and it is a duty of Bangladesh to hold trials for such crimes.

Given the above  background,  on  29th January 2009,  Bangladesh  Parliament adopted  a solution to try war criminals. On 25th March, the government decided to try war criminals under the 1973 International Crimes (Tribunals) Act and investigation as claimed by the government had already begun.[64]

04. ROLE OF INTERNATIONAL COMMUNITY
War crimes trial has international dimension. It has been a sensitive issue for many authoritarian developing countries because some of their heads of State or Governments adopt systematic and widespread state-sponsored oppressive and repressive measures against civilian population and political opponents and therefore they think they could be indicted by the Hague-based UN International Criminal Court. It is obvious that there are strong reservations of many countries for holding trials for such crimes. For example, about 30 countries that abstained from voting in the UN General Assembly when the Cambodian trial was put to vote. All African and Arab countries object to the issue of warrant of arrest on 4th March to the Sudanese President by the International Criminal Court on charges of crimes against humanity in Darfur region of Sudan.

05. RECENT DEVELOPMENT
The process of trying war criminals has begun on April 8 of this year with the appointment of an investigation officer and a public prosecutor. Meanwhile, Bangladesh has accepted a UN offer of sending a team of war crime experts to help Bangladesh try those who were involved in various war crimes during the Liberation War of 1971.

Law ministry officials said the group of UN specialists, having experience in dealing with war crimes that had occurred in different nations, might visit Dhaka shortly.

Many mistakes have been made in trials of war crimes earlier in many countries. The experts will share their experiences here in Bangladesh to avoid the mistakes. The process is very complex and delicate. The trial would be of Bangladesh’s own, not the UN’s. State Minister for Law Quamrul Islam said steps have already been taken so that suspects of war crimes cannot flee the country.

Law ministry officials said a large team would be formed to initiate investigation into the genocide that took place during the Liberation War after appointing the investigating officer and a public prosecutor for conducting the trial. The government has already passed a resolution in parliament paving the way for holding the trial.

The United Nations has already offered Bangladesh assistance in trying war criminals. The local office of the United Nations Development Programme (UNDP) has also named four international experts with experience in war crime trials. Their profiles have been submitted to the law ministry.

The government has taken initiatives to seek war-related documents and evidence from Pakistan and the United States, which backed Pakistan during the 1971 Liberation War, for holding the trial. The requests will be made under the International Crimes (Tribunal) Act, 1973.[65]
Chapter-7
Conclusion
Bangladesh maintains a deep commitment to the rule of law and to justice. Article 25 of the 1972 Bangladesh Constitution enjoins Bangladesh to establish its international relations on the principles of ” respect for international law and the principles enunciated in the UN Charter”. The Rome Statute is a UN Convention, based on the purposes and principles of the UN Charter. Furthermore the judicial and legal systems in the country are well established, just and fair. It is inconceivable that Bangladesh will allow such crimes to go unpunished. Bangladesh has already enacted a law in the 70s to enable it to put on trial persons accused of such horrible international crimes. In the light of the above situation, the perceived negative implication of ratification of the Rome Statute on Bangladesh nationals overseas, in my view, is misplaced and misconceived. I would argue that it is time and appropriate that Bangladesh ratifies the Rome Statue, providing a positive signal to the international community that Bangladesh does not tolerate the commission of such international crimes, wherever they may take place.
The most necessary Act namely the International Crimes (Tribunals) Act 1973 should be used and now, the government will have to constitute one or more tribunals by appointing the members according to the terms of the Act. The UN can help us in many ways but terms of references should be formulated by our government considering our social, political and historic perspective.[66]

There is scope to categories offences of war criminals of the Liberation War of Bangladesh as in the past few decades many new laws have been formulated., adding new universally accepted definitions of offences such as genocide, war crimes, crimes against humanity and crimes against peace. The International Criminal Court and many other special tribunals in different countries have dealt with war crime and have defined offences in different categories.

We will have to check thoroughly who were involved with the crimes during our liberation war and under which category of the offences they fall. We should proceed very carefully with a clear idea as the war criminals cannot evade justice due to the loopholes in laws.

The UN as it can play a key role in neutralizing pressures from outside that may stand in the way of the process to try war criminals. The caretaker government expressed their sincerity to the demand of trial of war criminals, some countries, even from the Middle East put pressure on the government not to try the war criminals.

A newly elected law maker from the AL, also a leader of the Sector Commanders’ Forum, a newly formed organization that came into the forefront in the last two years with the demand for trial of war criminals and an inquiry commission can be set up under the tribunal and the commission would go through the existing evidence and will investigate further.[67]

The government already has the list of war criminals in Bangladesh and other necessary records and evidence. It has many documents with the names of the people who collaborated with the Pakistani occupation forces under different names including Razakar, Al-Badr and Al-Shams, Now the procedures should be started to try them and it is the right time to bringing the perpetrators to justice.

BIBLIOGRAPHY

Books
1.         Adam Jones , Genocide, War Crimes and The West, Central Law Publication, 2002
2.         Gerry Simpson, Law, War and Crime: War Crimes Trials and the Reinvention of International Law, Sixth Edition, Oxford, 2003
3.         K.B Sayeed, The Political System in Pakistan, (Karachi, Oxford University Press, 1967)
4.         Mozibur Rahman, Friends Note Foes : A political survey of Pakistan, (Dacca, Mozibur Rahman, 14 Hatkhola Road, 1968)
5.         Moudid  Ahmed, Democracy and the Challenge of Trailing of the War Criminals in Bangladesh. (Dhaka : UPL, 1975)
6.         S.M. Hassan Talukdar, Independence of Bangladesh: Who Expectation (Dhaka, 1994)
7.         S.K Kapoor, International Law & Human Rights (Nutshell) Central Law Agency 2003.
8.         Report of Evidences Against the Perpetrators of 1971, Published by Nationals Peoples Enquiry Commission, Bangladesh, Gatok Dalal Nirmul Committee.
9.         The Killers and Collaborates of 1971: An account of their where about, by the centre for the development of the spirit of the liberation war, published under the authority of the sectors forum of Bangladesh, Published  1996.

Journals / Article
1.         George Michaile Hamigtony, action by the united states in the event of War Crimes committed throughout the world, American University Law review, Vol-13, fall 1975, No.-1
2.         J. N. Dixit, Liberation and Beyond, European Human Rights Reports, Published under the publication of West Minister, Law Society, Vol-33.
3.         Justice Mustafa, The Liberation in Bangladesh : Trends & Issues, (Dhaka, Dhaka University 1994)
4.         Justice Bodurl Haider Chowdhuy, Evolution of Freedom Fighters in Bangladesh, (Dhaka University 1990)
5.         Moidul Hossain, Main Stream 1971, Second Edition (Dhaka : UPL 1995)
6.         The Star weekend magazine, Published as a short weekly Magazine by The Daily Star.

Statute / Convention  
1.         Hague Convention, 1899
2.         Geneva Convention 1949
3.         International Crimes Tribunal Act 1973

Web-sites
1.         www.yahoo.com
2.         www.google.com
3          http://www.icrc.org/eng
4.         http://www.thedailystar.net/newdesign/index/php
5.         http://en.wikipedia.org/wiki/war_crime
6.         www.trumanlibrary.org/whistlestop/study/…/nuremberg
7.         www.nizkor.org/hweb/people/…./eichman_adlof/-us
8.         www.icc.org
9.         http://en.wikipedia.org/wiki/erga_omnes.
10        http://www.humanright.org/eng.
11.       www.genocidebangladesh.org