Part-I

A Brief History of the Framing the War Crimes (International) Tribunals Act, incorporated in the Constitution as Genocide
Act in July 19, 1973

- Wali-ur Rahman

Soon after the Simla Agreement Bangabandhu Sheikh Mujibur Rahman, Bangladesh Prime Minister, realized that the War Criminals might escape justice. He advised the former Foreign Minister and Law Minister Dr. Kamal Hossain to draft an act which would facilitate the setting up of a War Crimes (International) Tribunal which will meet the existing international standard. He understood that this will be first Tribunal since the Nuremberg War Crimes Tribunal. He advised the concerned Ministries in making sure that both the alleged Pakistani criminals as well as the Auxiliary forces supporting the Pakistani Army could be brought under the ambit of Justice.  

At that time I was in Geneva as the first Bangladesh Permanent Observer a.i, since Bangladesh was yet not a member of the United Nations because of the Chinese veto; I set up the Bangladesh Mission after resigning from the Pakistan Govt., however I piloted the Bangladesh admission to all the UN agencies in Geneva, Berne, Vienna and Rome.
 
Since there was no fax or Internet facilities, we had to use the Telex facilities of the International Committee of the Red Cross (ICRC). Marcell Neville, the Secretary General of the ICRC opened the ICRC gate for me on Avenue De La Paix. The Bangladesh Telex facilities were set up a few days before the visit of Bangabandhu Sheikh Mujibur Rahman to Geneva from August 23 to September 13, 1972. As advised by the Prime Minister Dr. Kamal Hossain had set up a cell to consider existing laws particularly the Geneva Conventions including the 3rd Additional protocol and Oppenheim’s landmark work on laws of war, laws of peace and laws of neutrality, for trying the alleged war criminals. They also consulted the publications of Hugo Grotius on the laws of war & peace (De Jure Belli ac Pacis). The Dutch jurist was a pioneer in areas of jurisprudence on war and peace.  

In Dhaka the main drafting work was done by Mr. Nasimuddin Ahmed, Joint Secretary, Ministry of Law, Mr. Harunur Rashid, Legal Advisor of Foreign office; they worked under the leadership of internationally recognized jurist Advocate S.R. Paul, Supreme Court of Bangladesh and under the guidance of Dr. Kamal Hossain, the government sought the assistance of two foreign consultants also in the drafting process.

Upon receiving each draft from Dhaka, I would first visit Mr. Ian McDormatt, former Foreign Minister of Ireland and then Chairman of the International Commission of jurists (ICJ) in Geneva. The ICJ acts as a watchdog on human rights violations and in upholding the existing principles of rule of law and jurisprudence around the world. After every session with Mr. McDormatt, I would go to the Max Plank Institute of International Criminal Law in Freibourg, Baden Baden, Germany. This Institute backstopped the Nuremberg Trials and the Tokyo Trials.   

Much to our luck, I found two prosecutors who were working together with other international prosecutors in the Nuremberg trial. The senior one, Professor Jescheck was working directly under Justice Jackson, the chief prosecutor of the trial. 

Chief among the architects of Nuremberg was Henry L Stimson, who had been Secretary of War under President William Howard Taft, Secretary of State under Herbert Hoover, and was again Secretary of War under Franklin D. Roosevelt; others closely involved included Attorney General Francis Biddle, Judge Samuel Resenman of the White House staff and, after Roosevelt’s death Justice Robert H. Jackson, who took leave from the Supreme Court of the United States to take charge of American interests in the war crimes field and serve as chief prosecutor.

While this law was first applied against the German aggressors, said Jackson in his address to the Nuremberg tribunal, “if it is to serve any useful purpose it must condemn aggression by any others nations, including those which sit here now in judgement.” As he spoke those words, many eyes in the courtroom shifted to the faces of the two Soviet members of the court, the judicial representative of a country that had invaded Poland in 1939 and Finland in 1940 and was widely believed to have been responsible in 1941 for the slaughter of thousands of Polish prisoners-of-war in the Katyn forest. That Jackson’s admonition went unheeded by the Russians; Soviet invasion of Hungary in 1956 Czechoslovakia in 1968 proved them right. After years of the Iron Curtain and the Berlin wall, most Americans have no more difficulty in condemning aggressions and atrocities today than they did in the past when brown and black uniformed Nazis and Fascists were the culprits.

Today, “Nuremberg is both what actually happened there and what people think happened, and the second is more important than the first. To set the record straight is no doubt, a useful historical exercise, but sea change is itself a reality, and it is not the bare record but the ethos of Nuremberg with which we must reckon today”.

International approval was equally impressive; 23 nations adhered to the treaty under which the first Nuremberg trial was held and after its conclusion the General Assembly of the United Nations affirmed “principles of inter-national law” embodied in the Nuremberg judgment.

In the wake of the Crimean War, the Civil War and the Franco-Prussian War of 1870 there arose, in Europe and America, a tide of sentiment for codification of the laws of war and their embodiment in international agreements. The principal fruits of that movement were the series of treaties known today as the Hague and Geneva Conventions. For the present purpose, the most important of these, are the Fourth Hague Convention of 1907, and the Geneva Prisoner of War, Red Cross, and protection of Civilians Conventions of 1929 and 1949. 

War crimes tribunals were convened by the United States after the Spanish-American War, and by the British after the Boer War. The first of these is that the laws of war remain a body of what lawyers call “customary” laws—that is to say, laws that are not created by statutes enacted by legislatures, but develop from societal custom and practice.

Professor Otto Von Trifterer was equally adept in the International Criminal Law and he was totally supportive of his senior professor Jescheck. I visited Freibourg perhaps as many as twenty-five times. I will take first a train from Geneva to Basel, and from there to the Max Plank Institute of International Criminal Law in Freibourg by Taxi.  

After the first draft was prepared it was sent to Dhaka by special bag to the Foreign Minister. After examination by the Bangladesh Govt., it was sent back to Geneva for further vetting. Meanwhile circumstances and international pressure did not allow the Govt. of Bangladesh to proceed with the process of trials. It was therefore decided to incorporate this as an Act in the parliament on July 19, 1973.

According to the jurists and researchers with the Max Plank Institute of International Criminal Law, Bangladesh Tribunal Act was the first codified law to try those guilty of crimes against humanity and war crimes.  During the Nuremberg trial, there was no law and the trials were conducted on the basis of the existing conventions.

This language embodied no novel conception of a commander’s responsibility. Ten years earlier, a military commission of American Generals condemned General Tomayuki Yamashita to death by hanging, for failure properly to control the conduct of Japanese troops under his command in the Philippines. The Yamashita case, and the principle that it exemplifies, are of great importance in establishing the reach of criminal responsibility for episodes such as those said to have occurred at Son My. War is not a license at all, but an obligation to kill for reasons of state; it does not countenance the infliction of suffering for its own sake or for revenge.

War consists largely of acts that would be criminal if performed in time of peace – killing, wounding, kidnapping, destroying or carrying off other peoples’ property. Such conduct is not regarded as criminal if it is takes place in the course of war, because the state of war lays a blanket of immunity over the warriors. As Francis Lieber put the matter in his 1863 Army regulations: Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God. In 1804, Chief Justice John Marshall declared that superior orders will justify a subordinate’s conduct only “if not to perform a prohibited act,” and there are many other early decisions to the same effect.

Battle of Solferino as depicted in the television drama Henry Dunant: Du rouge sur la croix (English title: Henry Dunant: Red on the Cross), which tells a story of signing Geneva Conventions and founding the Red Cross.

The Bangladesh act for setting up the tribunal was tested and examined very thoroughly by the top jurists of Europe and America. Both Professor Jescheck and Professor Otto Von Trifterer strongly believed that this law would stand the test of time, because since Nuremberg no such trial had taken place. As a matter of fact, when the Government’s decision was made known to them that the trial will not take place, they rushed to Geneva in a private Plane met me and pleaded with the Government of Bangladesh through me to visit Dhaka in order to setup the Tribunal and try the alleged criminals and hand down symbolic judgment on those who allegedly committed crimes against humanity, crimes of genocide and war crimes. Their intention was to test the Act drafted by us and fine-tuned by them and they were confident that the Act would stand the test of time. They also offered to bring with them a number of jurists and prosecutors from Europe and America at their own costs.

After 37 years, now the time has come to take the decision that the trial must be held to settle the matter once and for all so that such criminal acts and crimes against humanity do not take place anytime in the future in Bangladesh.

It was against this backdrop that the third International Criminal Law Conference took place in Dhaka, Bangladesh on December 26-29, 1974 sponsored by the US-based Foundation for the establishment of an International Criminal Court (ICC) and hosted by the Bangladesh Institute of Law and International Affairs (BILIA). The idea of ICC was first mooted here at BILIA at the International Conference. But the assassination of Bangabandhu stopped the whole process, so much so, that the 1998 Rome final Act of the ICC Treaty did not even mention, to my knowledge, about the Dhaka meeting. By holding the trial now the nation will be relieved of the burden of guilt still haunting the Republic.

Reference:
Hugo Grotius, On the Law of War and Peace, (De Jure Belli ac Pacis translated by A. C. Campbell), London, 1814.
L. Oppenheim, International Law: A Treatise, Vol. I (Peace), H. Lauterpacht (ed.), Longmans, London, 1963.
L. Oppenheim, International Law: A Treatise, Vol. II (Disputes, War and Neutrality), H. Lauterpacht (ed.), Longmans, London, 1963.
Telford Taylor, Nuremberg and Vietnam: An American Tragedy, Bentham Books, New York.
The Third International Criminal Law Conference, Organized by the Bangladesh Institute of Law and International Affairs (BILIA), Dhaka, 26-27 December, 1974.

[The author is the first Bangladesh Permanent Observer (a.i) in Geneva, 1971. He is a former Secretary, MOFA and member, International Institute for Strategic Studies, London. He is the author UN: We Believe In, and a co-author of Economic and Social Consequences of Arms Race and Military Expenditure published by the UN]