BDR Massacre and International Crimes (Tribunals) Act 1973
There is an enlightened debate on whether the International Crimes (Tribunals) Act (Act no XIX of 1973) applies or not to the suspected murderers at the BDR premises.
There are two views in the matter. One view suggests that it is applicable to those involved in the BDR massacre and the other view is that it cannot be invoked.
It is reported that the government’s preliminary thinking is to try the suspected murderers under the Army Act of 1952. Some lawyers have suggested in putting them on trial under the ordinary laws of the land before the courts. It is reported that the final decision will be taken by the government only when the reports of the investigations are submitted to the government.
Let me briefly examine whether the alleged criminals of BDR could be tried under the 1973 Act.
Facts:
On 25th and 26th February some indisciplined soldiers of the BDR reportedly killed 81 people including 61 army officials. Army officials include one General, two Brigadiers, sixteen Colonels, eleven Lt Colonels, twenty three Majors and two Captains. A few civilians were also killed from stray bullets on the street. Such mass killings of senior army officers are unprecedented in scale even during the war. The country has been reeling from this tragedy.
Scope of the International Crimes (Tribunals) Crimes Act 1973:
Some have argued that BDR personnel come within the definition of “auxiliary forces” as defined in the 1973 Act. The “auxiliary forces” under section 2 of the Act “includes forces placed under the control of the armed forces, for operational, administrative, static and other purposes.” The words “operational, administrative, static,” in the section are conjunctive and not disjunctive because they appear with commas and not with the words “or”.
The language of the definition makes it clear that both the operational and administrative must be under the control of armed forces.
So far as operational control of BDR is concerned, it could be argued that it is under the control of armed forces but the question arises whether the administrative control rests with the Home Ministry Although army officers are deputed to serve in the BDR, the question is who appoints the DG of BDR? To whom DG is accountable? If the over all administrative control is under the Home Ministry, then the definition of auxiliary forces is arguably not to be applicable to BDR personnel.
The jurisdiction of the Tribunal is stipulated in section 3 of the Act which runs as follows:
“A Tribunal shall have the power to try and punish any person irrespective of his nationality who, being a member of any armed, defence, or auxiliary forces commits, or committed, in the territory of Bangladesh, whether before or after the commencement of this Act any of the following crimes.”
The crimes listed in the Act are as follows:
War crimes: violation of laws or customs of war and humanitarian rules that are contrary to the 1949 Geneva Convention of Armed Conflicts against the civilian population. This includes disproportionate use of power and action against civilians.
Crimes against Humanity: murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war.
Genocide: Genocide includes any act of killing with intent to destroy in whole or in part, a national, ethnical, racial or religious group.
If one carefully examines the language of definition of crimes, it will appear that except genocide, the other two crimes must be committed against civilian population. What occurred at the BDR premises was the deliberate act of mass killing of army officials and not civilians.
If one looks at the crime of genocide, the extermination of Jews by the Nazi regime in Germany, killing of hundreds of thousands of Rwanda’s Tutsis and Hutu political moderates by Hutus under the Hutu Power ideology in Rwanda in 1994, and the killing of Muslims by Bosnian Serb forces in Srebrenica in 1995, or to ethnic cleansing that took place during the 1992-1995 Bosnian War, may be cited as instances of genocide.
Given the facts of the case, it will be highly difficult to prove before the Tribunal that the massacre at BDR, how horrible or brutal or senseless they are, constitutes genocide because of its strict legal definition. Mass killings of population and genocide are arguably different in their intent because genocide is confined to destruction or extermination in whole or in part, a national, ethnic, racial, religious or political group.
From the aforesaid examination, it is argued that neither the term “auxiliary forces” nor the crimes as defined in the 1973 International Crimes (Tribunals) Act can be attributed to BDR personnel who allegedly committed the BDR massacre..
By Barrister Harun ur Rashid
Former Bangladesh Ambassador to the UN, Geneva.
