The Nuremberg trials,
organized in the German city of Nuremberg, were carried out shortly after the
end of the Second World War, in May 1945, when the allied governments jointly
agreed that those responsible for wartime atrocities must be held accountable
and punished for their crimes. Some 5,000 Nazi’s were charged with war
crimes. However, the Nuremberg trials were designed specifically to prosecute
high-ranking Nazi officials with whom authority over heinous atrocities rested.
The four counts of the indictment were: 1- Conspiracy to commit crimes alleged
in other counts; 2- Crimes against peace; 3- War crimes; 4- Crimes against
humanity. The Nuremburg trials were one of the first organized attempts to
apply principles of international law, and established new precedents for the
international community. It is to be noted in Bangladesh, the Tribunal for
Crimes against Humanity has been established which largely deals with the
fourth count (i.e. the crimes against humanity) of the Nuremburg trials.
Similar to the Nuremburg trials, in Bangladesh the first batch of the criminals
presently tried by the Tribunals are the high-ranking leaders and decision
makers of the auxiliary paramilitary and political forces responsible for
conducting crimes against humanity (genocide, rape, arson and robbery etc.) during
the War of Independence (1971).
To realize the practical
implications of this trial let us explore further into the judgments of the
Nuremberg trials. We will primarily review judgments of the trials of Kaltenbrunner, Ernst.Kaltenbrunner was chief of the Security Police, SD, and
head of the RSHA, which meant he was also in charge of the Gestapo, the SD and
the Criminal Police. RSHA, at the time, engaged in widespread crimes against
humanity as well as war crimes, including mistreatment and murder of POWs, and
concentration camp workers, namely Jews, commissars, and others. Under RSHA,
about 6 million Jews were murdered, which established Kaltenbrunner in a
leading role in the ‘final solution’ of the Jewish question. This included the
order to have prisoners of Dachau and other camps liquidated just before camps
would have been liberated by the Allies. The
verdict reads “guilty on counts 3 & 4” and the sentence was “death by
hanging”.
We have taken the above case to demonstrate
that, on the ground of being guilty of committing crimes against humanity, the
international legal standards do have precedence of setting and making judgment
of “death by hanging” as the highest level of punishment.
It is also relevant to look into the roles
of some of the nations in relation to the Nuremberg trials as the same nations
are opposing the process of trail in Bangladesh under the present tribunal on
crimes against humanity during 1971. As for example, the British government opposed the establishment of
the Nuremberg war crimes tribunals at the end of the Second World War because
it wanted selected Nazi leaders to be summarily executed and others to be
imprisoned without trial, according to a contemporary account that is
declassified.
Interestingly,
a visiting British minister recently chose to forget that her own nation wanted
to hang some of the Nazi leaders without proper trial and sentence others to
imprisonment without any form of trial!! This is alarming as it reveals that the
present debate raised by one of the most vocal international actorsis carried
out to make the Bangladesh’s Tribunal controversy- not on legal or moral
grounds but purely on political grounds.
Another contradictory position regarding
Bangladesh’s Tribunal is displayed by the Amnesty International. Regarding
acquittal of some of the defendants in Kosovo-trial, the organization has taken
a strong position to ensure punishment. The acquittal of three high-ranking members of the
Kosovo Liberation Army (KLA) by the International Criminal Tribunal for the
former Yugoslavia (ICTY) after a retrial on war crimes charges has prompted
Amnesty International to reiterate its call for justice for all of the victims
in the 1998-9 Kosovo war, and their relatives. Interestingly,
the Shahbag uprising of people is similarly raising the question over the judgment
of life imprisonment of Kader Mollah (a key decision maker of 1971 genocide)
and demanding justice through appeal but Amnesty International is attempting to
silence such protests.
It
is further important to note that the establishment of a Tribunal for war time
atrocities is not an event but a process and this has been experience all over
the globe. As for example in Cambodia laws and agreements have been amended
several times before the tribunal could finally be established. In June 1997,
the Cambodian government requested help from the UN in prosecuting former
leaders of the Khmer Rouge for crimes committed between 1975 and 1979.
Initially, the UN wished to establish a third ad hoc International
Criminal Tribunal such as for the former Yugoslavia or for Rwanda. However, the
Cambodian government refused to countenance the establishment of such a
mechanism, which led the parties to draft a Memorandum of Understanding (MOU)
concerning “significant international co-operation” in trials before Extraordinary
Chambers of the Cambodian Courts. In August 2001, Cambodia finally promulgated
a law which was not entirely consistent with the terms of the MOU, for which
reason the Secretary-General decided to pull the UN out of the negotiations in
February 2002. However, the UN General Assembly requested him to pursue
negotiations. This resulted in an amended bi-lateral agreement on 6 June 2003,
following the adoption by the General Assembly of the United Nations on 13 May
2003, of a resolution, approving a proposed agreement between the UN and
Cambodia on the prosecution of crimes committed between 1975 and 1979 in
Cambodia (A/RES/57/228 B).
Nevertheless, the agreement signed on 6 June 2003 could only come into force in
April 2005, when a donors’ conference received promises covering the
quasi-totality of the necessary international contributions. In Cambodia the
2001 Law was then amended on 27 October
2004 to bring it into conformity with the International Agreement. The
similar process of legal amendments are carried out in Bangladesh to make
the tribunal just and fair in line with international standards and people’s
aspiration for justice (such as both the defendant and plaintive can appeal
against preliminary judgments). Nevertheless, Bangladesh is experiencing global
oppositions as if, legal and administrative amendments are unacceptable once
the tribunal is set on motion. This is in fact once again a reflection of
biased-political opposition that defies international standards and historical
precedents.
Now
let’s talk about the demand of highest punishment to the defendants accused of
crime against humanity during the war of 1971. According to the laws of
Bangladesh death sentence is considered as a “just” judgment for “grave”
offences. Different laws bear such sentencing. From this perspective the law
that established the Tribunal for crimes against humanity contains the
provision of death sentence as the highest punishment. The international
pressure in recent years have often molded many nations to bring in softer
punishments in general to ensure that such softer punishment is also
incorporated within the tribunals for war time atrocities. One such example is
the case of Rwanda. Rwanda dropped
Death Penalty as the process of war crime trial progressed.
TheFrench media
reported(January
19, 2007) that Rwandan government approved a law that – pending parliamentary
ratification – would abolish capital punishment in the country. The report
indicated that this “landmark decision” might encourage Western countries that
oppose the death penalty to extradite genocide suspects caught within their
jurisdictions for trial in Rwanda. This reveals two aspects: firstly, if the
national law allows, such as in case of Bangladesh, the provision of death
sentence can very well be a part of the Tribunal for trials on war time
atrocities. Secondly, only if the general law of the land changes, this
provision can be expected to be dropped from such a tribunal. In case of
Bangladesh as discussed earlier, the laws of the land do support death
sentencing (in general). Secondly, the public emotion is not against death
sentencing, in fact the Shahbag Uprising is urging the government to appeal
against the preliminary verdict of one such accused who has been found guilty
for directing mass killing. Thirdly, those who are mostly opposing the popular
demand voiced in Shahbag, are not against death sentencing in general (they are
in fact in favor of Islamic Sharia Law).The supporters of Jamat-e-Islami are simply
against any form of trial of the crimes against humanity committed during the
War of Liberation (1971). These should not be overlooked while we are
considering the demand of highest punishment as raised by the Shahbag Uprising
of people. Those who are opposing death sentence need to wait till Bangladesh
in general begins to oppose and legally abolishes death penalty in general
before it is expected that cry for justice for crimes against humanity will
drop the chanting of death penalty for Kamruzzaman and other such accused.
