Can president pardon war crime convict?

Now the only step Mir Quasem Ali may take is to seek presidential clemency. The Supreme Court yesterday rejected his plea for reviewing the apex court's verdict that upheld a tribunal judgement sentencing him to death for war crimes.

His lawyer Khandaker Mahbub Hossain yesterday said the Jamaat leader will decide whether he will apply for the presidential clemency.  

According to article 49 of the constitution, the President has the power to grant pardons, reprieves and respites and to remit, suspend or commute any sentence passed by any court, tribunal or other authority.

On his own, he can not exercise this power. He needs advice of the Prime Minister to exercise it.

So, if the Jamaat leader applies to the President, fate of his application will be determined by the Prime Minister as the President will just act on the advice. 

But, the crucial question is: can the President, even if advised by the Prime Minister, pardon Mir Quasem Ali for committing crimes against humanity during the Liberation War of Bangladesh in 1971?

According to international laws and practices the President cannot exercise his prerogative of mercy to pardon any war criminal.  

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, it said.

“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. Bangladesh is a signatory of the convention.

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.

So, it can be said that fate of Quasem has been sealed yesterday after rejection of his review petition.