Can Sheikh Hasina Face Justice? The 1973 International Criminal Tribunal Act may hold the key to accountability
The question on everyone’s mind is, "can Hasina face actual justice?”?
The International Crimes Tribunal Act. 1973 may be the answer to that question.
There is precedence of this act being used in the prosecution of the “razakars” of 1971. This act has certain criteria which ensures that the criminals who are far from the crime scene are subject to law, and can not escape the rule of law by implementing conventional tactics.?
The international criminal court has proven its effectiveness, and if the government is willing to put Sheikh Hasina and her co conspirators on trial, they have a clear roadmap to do so quickly, effectively, and with transparency.?
According to the International Crimes Tribunals Act.1973 section (3):?
A Tribunal shall have the power to try and punish any individual or group of individuals, 4 [or organization,] or any member of any armed, defense or auxiliary forces, irrespective of his nationality, who commits or has committed, in the territory of Bangladesh, whether before or after the commencement of this Act, any of the crimes mentioned in sub-section 2.
Which means there is an opportunity for the entire Awami League with all of its auxiliary forces to face trial. The crimes mentioned in section (2) includes murder, torture, abduction, and many more. There is ample evidence against B.A.L and its auxiliary organizations of abductions, murder, and incerection of violence.?
There might also be an uncertainty regarding the whereabouts of the accused, as most of them fled to foreign countries and may seek asylum. But under section(10) of the International Criminal Act. they too will be subject to trial.?
10A. (1) Where a proceeding is commenced under sub-section (1) of section 9, the tribunal, before fixing the date for the trial under sub-section (2) of the said section, has reason to believe that the accused person has absconded or concealed himself so that he cannot be produced for trial, may hold the trial in his absence following the procedure as laid down in the Rules of Procedure made under section 22 for such trial.
If there is a question regarding Sheikh Hasina’s status as a political asylum seeker in India or any other country, the law specifically says that the accused need not be present in order to commence the trial, and the government has the ability to submit a charge sheet under the act regardless of any arrests, or presence of the alleged criminal.?
Another common loophole of the leaders pulling the string behind the scene is utilizing the ‘incompetence’ card. And submitting to the court that the ‘situation’ in question got out of their control. But under section 4(2), this is no longer an option for the people behind the scene.?
Any commander or superior officer who orders, permits, acquiesces or participates in the commission of any of the crimes specified in section 3 or is connected with any plans and activities involving the commission of such crimes or who fails or omits to discharge his duty to maintain discipline, or to control or supervise the actions of the persons under his command or his subordinates, whereby such persons or subordinates or any of them commit any such crimes, or who fails to take necessary measures to prevent the commission of such crimes, is guilty of such crimes.?
There is also a potential under section 4(2) to hold Hasina personally liable for the orders or directions she might have allegedly given to conduct the killings. There is no scope for leniency assuming incompetence in controlling the law enforcement agency.
Mr. Obaidul Quader, the secretary general of Awami League can also be held liable for the statements he made which proclaimed that Bangladesh Chatro League was enough to “handle the riots”. There is also no chance of escaping the responsibility of certain statements which some zealous political leaders may have made under section 19(3).?
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?A Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof.
In short, what Obaidul Quader said about the league being “enough” to handle the riots, can not be just thrown away simply as political rhetoric, rather the common knowledge known to us that this was a call to Chatro League to arm themselves and attack the protestors will prevail in court also.?
Not only that, the age-old excuse of “I was just following orders” will not be applicable in deciding the fate of the alleged criminals of the law enforcement agencies because of section 5(2).
The fact that the accused acted pursuant to his domestic law or to the order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal deems that justice so requires.
There is also transparency in considering factual evidence. The tribunal can accept any “non technical” evidence such as news and media reports, and pictures or videos of atrocities under section 19(1).
A Tribunal shall not be bound by technical rules of evidence; and it shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and may admit any evidence, including reports and photographs published in newspapers, periodicals and magazines, films and tape-recordings and other materials as may be tendered before it, which it deems to have probative value.
However, there are certain loopholes. No official of the government of Bangladesh, or Bangladeshi citizen is law bound to help the investigative team. The law for those who do not cooperate under section 8(7) is simply a fine of two thousand taka, or jail of six months, or both. Which in reality is hardly enough to ensure proper cooperation of corrupt government bureaucrats and officials who might be important witnesses or might uphold important evidence.?
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.
The International Crimes Tribunal can also decide if cameras can be allowed to ensure transparency under section 10(4), which means there can be a historical precedent where the trial is broadcasted live for the world to witness.
The proceedings of the Tribunal shall be in public:?
Provided that the Tribunal may, if it thinks fit, take proceedings in camera
Overall, there is scope for justice, and a legal framework to stop loopholes which top leaders historically utilized. There is a larger call for the perpetrators to be bought under justice. It is a matter of time to see if Bangladesh has the spirit to upload justice for those innocent children and adolescents who were killed, and punish the real criminals.
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