Prosecuting Pakistani Perpetrators in absentia

The establishment of the International Crimes Tribunal, Bangladesh (ICTBD) in 2010 created high hopes that justice for the 1971 genocide might finally eventuate. Keeping pace with the public expectation as of March 2021, the ICTBD has resolved 42 cases involving the 1971 atrocities, and more than five hundred cases await investigation; yet, none of these implicates any of the Pakistani perpetrators who planned, commanded, and executed the genocidal acts throughout the liberation war.      

There is a mistaken assumption which Pakistan takes for granted that the 1973 Delhi Agreement and 1974 Tripartite Agreement relieved the Pakistani prisoners of war (POWs) from all sorts of accountability for the 1971 genocide. Speaking truly, while signing the Tripartite Agreement, Pakistan "condemned and deeply regretted" the 1971 atrocities and appealed to the Bangalees to "forgive and forget the mistakes of the past" in order to promote reconciliation. In response, Bangladesh agreed not to proceed with the trial "as an act of clemency" to achieve "reconciliation, peace, and friendship in the sub-continent."

Paradoxically, the hostility between Bangladesh and Pakistan has gradually intensified due to the denial of the atrocities by the latter which also brings back the accountability and recognition of genocide cards to the table. In November 2015, in an unprecedented move, Pakistan officially denied any "complicity in committing crimes or war atrocities" in 1971. The Khyber Pakhtunkhwa Provincial Assembly of Pakistan passed a resolution in 2013 urging Bangladesh not to "revive the issues of 1971" and "terminate all cases registered". While the prosecution progressed in Bangladesh, the National Assembly of Pakistan often adopted resolutions expressing concern and condemnation for the execution of leading perpetrators pursuant to the ICTBD's verdicts. In September 2016, the Pakistani Parliament also asked Islamabad "to seriously raise at all the international forums" that the proceedings of the ICTBD were violative of the Tripartite Agreement. 

For long, Pakistan has been denying the widespread and systematic nature of its genocidal acts to the utter disregard of the victimisation of the Bangalees. This trend of denial and falsehood has reinforced the claim for accountability and recognition of the 1971 genocide. Of the international law scholars, Robertson suggests that "there can, in any case, be no amnesty for an international crime like genocide. The deal in Delhi was not a bar to prosecutions, however many years later". As the limitation is not a bar against the prosecution of genocide, even today the perpetrators of the 1971 genocide could lawfully be prosecuted under national or international jurisdiction.  

Ideally, the International Humanitarian Fact-Finding Commission may be engaged as per the Geneva Conventions, or a Fact-Finding Commission may be constituted under the UN mandate to inquire about the international humanitarian and human rights breaches during the 1971- armed conflict. An international prosecution either under the UN mandate or bilateral agreement between Bangladesh and Pakistan can also settle the issue of state responsibility and individual accountability for the 1971 genocide. In the present international political setting, arranging an international prosecution seems impossible; also, there is valid concern regarding our foreign missions' capacity to bag international support for any International Fact-Finding Mission to examine the 1971 atrocities.              

Hence, prosecuting the Pakistani perpetrators at least the surviving top commanders in the ICTBD for the 1971 atrocities might symbolize minimal justice against the denial of the liability by Pakistan. Yet, despite available evidence on hand, bringing Pakistani perpetrators to justice would be a critical challenge. Presumably, they would not be appearing before the ICTBD voluntarily; neither Pakistan would cooperate to ensure their appearance, nor any intervention either by Bangladesh or any international community compelling their attendance is likely to happen. In this backdrop of impunity, prosecuting them in absentia might be a practical approach for imposition of historical liability. Internationally, there are instances of trial in absentia on account of atrocious crimes; encouragingly, Bangladesh's national jurisdiction, particularly Statute of the ICTBD also allows prosecuting a perpetrator in his/her absence.      

During the emergence of international criminal law, article 12 of the 1945 Nuremberg Charter empowered the Tribunal to take proceedings against a perpetrator in his absence, if he was not found or if the Tribunal in the interests of justice found it necessary to conduct the hearing in his absence. Pursuant to this mandate, the Nuremberg Tribunal prosecuted Martin Bormann, the Chief of Nazi Party Chancellery and Secretary of Hitler, in his absence, for his involvement in war crimes and crimes against humanity, and sentenced him to death. In the recent past, in absentia proceedings received much legitimacy due to the UN Security Council's approval. Under its resolution no. 1757 [ 30 May 2007], the Security Council established the Special Tribunal for Lebanon (STL), to investigate and prosecute the terrorist attack that led to the killing of Lebanese Premier Rafik Hariri and many more. Article 22(1) of the Statute of the STL permits trial in absentia if the accused expressly and in writing waives his or her right to be present; or, has not been handed over to the Tribunal by the State authorities concerned; or, has absconded or otherwise cannot be found and all reasonable steps have been taken to secure his or her appearance before the Tribunal and to inform him or her of the charges. While conducting a trial in absentia article 22(2) requires the STL to ensure that the accused has due notice of the charges via all possible means including publication in the media or communication to the State of residence or nationality; and, he has an opportunity to defend himself through a defence counsel of his choice either paid by him or by the Tribunal. Moreover, if refused by the accused, his representation by counsel should be ensured by the Defence Office of the STL. The Statute further provides that in case of conviction in absentia, the accused, if he or she had not designated a defence counsel of his or her choosing, shall have the right to be retried in person before the Tribunal, unless he or she accepts the judgment.

In prosecuting perpetrators in absentia, the resolution no. 1757 is of practical importance mainly for the reasons that due to the Security Council's primacy in international political setting, its resolution enjoys status of the highest law in the international legal order; and, the criteria it prescribes, if imitated by any national or international tribunal, could effectively encounter the concerns regarding legality and legitimacy of the in absentia trial.      

In Bangladesh, section 10A of the International Crimes (Tribunals) Act 1973 permits the ICTBD to prosecute in absentia, when on account of the failure of the summons or warrant, the Tribunal has reason to believe that the accused person has absconded or concealed himself from the trial. Moreover, section 44 of the Rules of Procedure allows the ICTBD to admit a wide range of evidence unconnected to human testimony. Like the STL, the ICTBD may, to represent the interest of the absconding offender, appoint a state sponsored defence counsel. Besides, if the offender is convicted, a right to appeal in the Appellate Division of the Bangladesh Supreme Court is guaranteed under section 21. Seemingly, in case of trial in absentia the ICTBD is equipped to offer same level of fair trial standard as is prescribed by the Security Council resolution.  

Curiously, the provision of in absentia trial remained absent in the original scheme of the ICTBD statute; so, its inclusion in 2012 led to the assumption that the Prosecution office perhaps at that point of time actively considered establishing accountability of the perpetrators whose appearance might not be secured even after due diligence. To our disappointment, the Prosecution Office however failed to capitalise the avenue allowing Pakistan much leverage to outrightly deny the 1971 genocide.

The writer is Associate Professor of Law, Jahangirnagar University.