Pakistan army's 195 officers are morally and legally culpable for
the genocide of 1971 and Bangladesh has the moral and legal rights to
try them. Pakistan's excuse of the 1974 agreement does not give it
reprieve.
This is the last of our series in exposing Pakistan's
moral hypocrisy and duplicity about its army's war crimes in Bangladesh
in 1971.
The 195 Pakistani soldiers against whom Bangladesh had collected
specific evidences of genocide can still be tried in the International
Criminal Court in The Hague irrespective of whatever was mentioned in
the 1974 Delhi Agreement that Pakistan claims had absolved these
criminals from prosecution.
After a long-drawn stressful negotiation over the POWs, Bangladesh
finally signed a tripartite agreement in Delhi in April, 1974 in which
Bangladesh said “having regard to the appeal of the Prime Minister of
Pakistan to the people of Bangladesh to forgive and forget the mistakes
of the past,” and Bangladesh decided not to proceed with the trials as
an act of clemency.
But Bangladesh inked the agreement because Pakistan held 203
Bangladeshi officials hostage for its 195 officers of very high ranks.
It also made the repatriation of four lakh Bangladeshis uncertain and
put intense international pressure on Bangladesh.
However, this “clemency” has no bearing on the trial of those who
committed genocide as the UN High Commissioner for Human Rights report
of 2009 titled “International Law and United Nations Policy on Amnesty”
said: “Under various sources of international law and UN international
policy, amnesties are impermissible if they prevent prosecution of
individuals who may be criminally responsible for war crimes and
genocide.
An amnesty for genocide would violate the Genocide Convention and Customary international law.
“Amnesties that prevent the prosecution of war crimes ….are
inconsistent with the State's obligations under the widely ratified
Geneva Convention of 1949 and their 1977 Protocols, the UN said.
Countries which have signed the Geneva Convention are obliged to search out such criminals and try them.
The European Court of Human Rights also made similar observations
during the trial of Fred Margus, a Croatian army commander accused of
killing Croatian-Serb civilians during the war in the early 1990s.
The Court found that there was a growing tendency in international
law to view granting of amnesties in respect of grave breaches of human
rights as unacceptable.
Not only that, under long-settled rules of international law, any
court may exercise universal jurisdiction over “acts amounting to crimes
against humanity, such as widespread or systematic murder, torture,
forced disappearance, arbitrary detention, forcible transfer and
persecution on political grounds, and heads of state and former heads of
state do not enjoy immunity under international law - whether in
international or national courts - for crimes under international law,
including crimes against humanity and torture.”
So, Bangladesh has every right now to go to the international court
and demand trial of the Pakistani soldiers who committed all kinds of
war crimes including genocide, rape and looting. The Delhi tripartite
treaty would not stand in any way to bar it.
Geoffrey Robertson QC, who worked as the president of UN's war crimes
court in Sierra Leon, in a report in 2015 titled "REPORT ON THE
INTERNATIONAL CRIMES TRIBUNAL OF BANGLADESH" had rightly put the context
to the tripartite agreement when he said Bangladesh holocaust came
before the world had any will to intervene in faraway countries of which
the major powers knew little.
“This was the era of impunity – for mass killings in Indonesia, for
General Pinochet's tortures, for the Argentinian Junta's death squads,
for Idi Amin's butchery in Uganda, Mugabe's massacres in Matabeleland,
for Papa Doc and (for thirty years) for the genocidal behaviour of the
Khmer Rouge,” he wrote.
It was not until 1994 that the Nuremberg legacy began to be delivered
-- for the mass murders by Milošević in the Balkans (the ICTY), and the
genocide in Rwanda (the ICTR) and later for Charles Taylor (the UN
Special Court in Sierra Leone) and, finally, for Pol Pot's lieutenants
in Cambodia.
“Now, with the International Criminal Court (ICC) established with
132 member states, it is broadly accepted that crimes against humanity
committed in civil war should receive punishment, however belatedly,”
Robertson maintained.
Bangladesh can still carry out Bangabandhu Sheikh Mujibur Rahman's
original resolution when he said, “How can you expect me to abandon it?
Three million people were cold-bloodedly murdered. Two hundred thousand
girls have been raped by the Pakistan army. Ten million people had to
migrate to India and another 15 million moved from place to place out of
fear. The world should know what has happened” (New York Times, July
21, 1972).
And why an amnesty cannot be used to bar trial for genocides had been
eloquently conjured up in 1764 by Cesare Beccaria, an Italian
criminologist, jurist, philosopher, and politician, who is widely
considered as the most talented jurist and one of the greatest thinkers
of the Age of Enlightenment.
He said "The conviction of finding nowhere a span of earth real
crimes were pardoned might be the most efficacious way of preventing
their occurrence."
So Bangladesh has every moral right to hunt them down and drag them to trial.
