DUCSU LPR


Development of Crimes against Humanity and the Bangladeshi Definition


Jun 22, 2020

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Introduction

The birth of the nation state of Bangladesh came through a brutal secessionist movement in 1971. This was closely chronicled by the international media at the time. The secessionist movement and the ‘break-away’ of erstwhile East Pakistan (Bangladesh) have been cited as an example in the Kosovo’s Declaration of Independence.[1] The architects of atrocities enjoyed long periods of impunity and many were brought to account for their heinous crimes under a domestic Bangladeshi legislation that included among other ‘international’ crimes - crimes against humanity.

This paper traces the development of the international legal prohibition of crimes against humanity, the legislative language of the Bangladeshi Statute and how it compares to other international legal instruments. Particular attention is paid to the contextual threshold, i.e., that crimes against humanity set itself apart as a particularly heinous kind of international crime because it takes place in a certain context, namely, they must be part of a widespread or systematic attack directed against a civilian population. This is an important point since the Appellate Division (the ‘apex’ Bangladeshi Court) have effectively rejected the contextual threshold by ruling against direct applicability of customary international law. It is therefore pertinent to analyse the development of the said contextual notions and whether such notions have crystallized into customary international law by the time of the events of 1971. A corollary issue that warrants examination is whether the proscribed acts amounting to crimes against humanity should take place pursuant to an organisational ‘policy’ and if so, what is the customary status of such a notion?

The Bangladeshi Statute also does not require a nexus to armed conflict. In not requiring a nexus to armed conflict, it differs from the Nuremberg and Tokyo Charters, both of which required a connection to war crimes or to aggression.[2] It is similar to the Control Council Law 10[3], adopted by the Allied Control Council, in charge of making laws for occupied Germany. This legislation which was also meant for purely domestic implementation did not require a nexus to armed conflict. Military tribunal decisions were split, with some requiring a nexus[4] and others not requiring[5]. An examination of subsequent international legal instruments aimed at proscribing crimes against humanity reveals that some Conventions did not require the armed conflict nexus. This includes the Genocide Convention[6], the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity 1968[7], the Apartheid Convention 1973[8] and the Inter American Convention on Enforced Disappearance[9]. On the other hand, the International Criminal Tribunal for the former Yugoslavia (hereinafter ICTY) Statute, adopted in 1993 by the UN Security Council restricts crimes against humanity to those committed in armed conflict whether international or internal in character.[10] However, within a year, the Security Council reversed this requirement when it adopted the International Criminal Tribunal for Rwanda (hereinafter ICTR) Statute.[11] It can be ascertained without exception that the nexus to an armed conflict has been fully severed after the extensive debate at the Rome Conference 1998[12], culminating in the adoption of the Rome Statute of the International Criminal Court (Article 7)[13]. It would appear that the Bangladeshi Statute have deliberately avoided a nexus to armed conflict, much like the Control Council Law No. 10. This paper will also critically examine if a nexus to armed conflict was indeed a requirement by the time the Bangladeshi Statute was enacted.

Another aspect that warrants discussion in conjunction with crimes against humanity is whether a nexus to a discriminatory animus is required. The crime of ‘persecution’ requires certain discriminatory grounds. The ICTR Statute also required a discriminatory intent. This paper attempts to trace those developments and their current status.

Any academic scrutiny will be incomplete without a brief historical context. The two Bangladeshi Tribunals in all its judgment gives a near-identical account of what happened in 1971, as is the practice of such judicial forums. While accounts of armed conflicts are often contested, there is no escaping the enormity of the tragedy that was recorded by international media at the time or the horror picture of human sufferings depicted in the Tribunals judgments or indeed the picture of devastation in the findings of the 1972 International Commission of Jurists reports.[14]

Historical Backdrop and Context: Bangladeshi Tribunal’s view

The following section details the historical context provided by the International Crimes Tribunal 1 in Case No. 06 of 2015, The Chief Prosecutor v. Md. Idris Ali Sardar & Md. Solaiman Mollah[15]. Part VI of the 486 page judgment gives the historical context, which is nearly identical in both the Tribunals judgments. It is as follows:

 

In August 1947 the partition of British India based on two nation theory, gave birth to two new States, one a secular State named India and the other the Islamic Republic of Pakistan of which the western zone was eventually named as West Pakistan and the eastern zone as East Pakistan, which is now Bangladesh.

In 1952, the Pakistan authorities attempted to impose 'Urdu' as the only State language of Pakistan ignoring 'Bangla', the language of the majority population of Pakistan. The people of the then East Pakistan started movement to get Bangla recognized as a State language, eventually turned to the movement for greater autonomy and self-determination and ultimately independence.

In the general election of 1970, the Awami League under the leadership of Bangabandhu Sheikh Mujibur Rahman became the majority party of Pakistan. Despite this overwhelming majority, Pakistan government did not hand over power to the leader of the majority party as democratic norms required. As a result, movement started in this part of Pakistan and Bangabandhu Sheikh Mujibur Rahman in his historic speech of 7 March, 1971, called on the Bangalee people of the eastern zone to strive for independence if people's verdict would not be respected and power was not handed over to the leader of the majority party.

On 26 March,1971 following the onslaught of "Operation Search Light" by the Pakistani Military on 25 March, Bangabandhu Sheikh Mujibur Rahman declared Bangladesh independent immediately before he was arrested by the Pakistani army.

In the War of Liberation that ensued, all people of the then East Pakistan wholeheartedly supported and participated in the call to free Bangladesh but a small number of Bangalees, Biharis, other pro-Pakistanis, as well as members of a number of different religion-based political parties joined and/ or collaborated with the Pakistan military to actively oppose the creation of independent Bangladesh and most of them committed and facilitated the commission of atrocities in the territory of Bangladesh. As a result, 3 million [thirty lakh] people were killed, more than two lakhs [two hundred thousand][16] women were raped, about 10 million [one crore] people deported to India as refugees and million others were internally displaced.

It also experienced unprecedented destruction of properties all over Bangladesh. The Pakistan government and the military with the help of some pro-Pakistani leaders set up a number of auxiliary forces, such as, the Razakar Bahini, the Al-Badar Bahini, the Al-Shams, the Peace Committee etc, essentially to collaborate with the Pakistani army in identifying and eliminating all those who were perceived to be sympathized with the liberation of Bangladesh, individuals belonging to minority religious groups especially the Hindus, political groups belonging to Awami League and other pro-independence political parties, Bangalee intellectuals and civilian population of Bangladesh.

 

Undeniably the road to freedom for the people of Bangladesh was arduous and torturous, smeared with blood, toil and sacrifices. In the contemporary world history, perhaps no nation paid as dearly as the Bangalees did for their emancipation.

Having regard to the fact that during the period of War of Liberation in 1971 parallel forces i.e Razakar Bahini, Al-Shams, Al-Badar Bahini and Peace Committee were formed as auxiliary forces of the Pakistani armed forces that provided moral support, assistance and substantially contributed and also physically participated in the commission of horrendous atrocities in the territory of Bangladesh. It is the fact of common knowledge that thousands of incidents happened throughout the country as part of organized and planned attacks against the pro-liberation Bangalee civilian population, Hindu community, pro-liberation political group, freedom-fighters and finally the 'intellectuals'. We are to search for answers of all these crucial questions which will be of assistance in determining the culpability of the accused persons for the offences for which they have been charged.[17]

 

In Pakistan, a judicial commission of inquiry was set up after the armed conflict of 1971 under the chairmanship of the then Chief Justice, Hamoodur Rahman. The Commission examined nearly 213 witnesses and hundreds of classified army signals between East and West Pakistan and submitted its main report in July 1972. It further submitted a Supplementary Report on 23 October 1974, after interviewing returning prisoner of wars and other civilian interviewees from their internment in India.[18] Neither reports were made public for many years. In 2000, the Supplementary Report was declassified and is currently available in the public domain. The Commission placed the blame squarely on the Pakistani Army for the situation in East Pakistan in 1971. The Commission accepted an estimate of a death toll of 26,000 persons killed, and rejected the Bangladeshi allegation of 200,000 rapes as being highly exaggerated and ‘altogether fantastic and fanciful.’ [19] This assertion however does not tally with other findings such as Susan Brownmiller’s account:

 

200,000, 300,000 or possibly 400,000 women (three sets of statistics have been variously quoted) were raped. Eighty percent of the raped women were Moslems, reflecting the population of Bangladesh, but Hindu and Christian women were not exempt…. Hit and- run rape of large numbers of Bengali women was brutally simple in terms of logistics as the Pakistani regulars swept through and occupied the tiny, populous land…. Girls of eight and grandmothers of seventy-five had been sexually assaulted…Pakistani soldiers had not only violated Bengali women on the spot; they abducted tens of hundreds and held them by force in their military barracks for nightly use.[20]

 

While the Pakistani inquiry was sceptical of such high figures, most jurists[21] agree that the International Commission of Jurists Reports[22] findings are closer to the real figures.

Emergence as a Legal Concept

While crimes against humanity are often claimed to be as old as humanity itself[23], as a legal concept it was first enumerated in the ‘Martens clause’[24] in the 1907 Hague Convention[25]. The 1907 Hague Convention has its roots in many respects in an International Military Commission staged on Crete in 1898 by the six Great Powers (Russia, France, Italy, Great Britain, Germany, and Austria). These trials exercised jurisdiction over acts, such as the massacre of Christian compatriots by Muslim Cretans that would later be termed crimes against humanity[26]. The term was used by Leon Trotsky in his 1911 essay Against Individual Terrorism[27] describing it as all the indignities to which the human body and spirit are subjected[28]. Another significant reference to the term came in the joint declaration by France, Great Britain and Russia in 1915, following the Armenian massacre by Turkey. The denouncing text read:

[...] In view of these new crimes of Turkey against humanity and civilization, the Allied Governments announce publicly to the Sublime Porte that they will hold personally responsible for these crimes all members of the Ottoman Government, as well as those of their agents who are implicated in such massacres.[29]

The development of the concept prior to the adoption of the Nuremberg Charter remained normative in nature with no ‘positive’ legal prohibition despite the fact that after the First World War, an international war crimes commission recommended the creation of a tribunal to try ‘violations of the laws of humanity’.[30] In spite of such recommendations, the creation of a punishable offence for crimes against humanity remained elusive as the Treaty of Versailles and Treaty of Lausanne declined to prosecute persons for such crimes.[31]

 

Entry into Positive Law

Crimes against Humanity became a part of positive law through its inclusion as a cognizable offence under the Charter of the International Military Tribunal.[32] Article 6(c) read:

namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.[33]

The framing of the Nuremberg Charter is a game-changer considering that before the inception of the human rights movement, international law purported to regulate the conduct of states. This was a first time attempt to bring perpetrators of atrocious crimes to justice when crimes are committed against a country’s own population. The reference, to ‘any’ civilian population includes a country’s own as well.[34] Furthermore, the use of the word ‘population’ denotes to have created a requirement of scale,[35] although the precise threshold was not specified in the Charter or the subsequent judgments.[36] The Charter purported to define crimes against humanity in reference to crimes against peace[37] and war crimes[38] as evidenced by the use of the words ‘before or during war’ thus requiring a connection to an armed conflict and therefore appearing restrictive.

 

Restrictive Practice Adopted by Nuremberg Tribunal

The Nuremberg Tribunal’s jurisprudence exemplified surprising restraint in its use of this subset of crimes under the Charter, largely restricting the prosecution of crimes against humanity to ‘acts’ that took place after the declaration of war. Donnedieu de Vabres, the French judge at Nuremberg, felt that “the category of crimes against humanity which the Charter had let enter by a very small door evaporated by virtue of the Tribunal's judgment.”[39] The Tribunal in its judgment of 1st October 1946 observed that:

To constitute Crimes against Humanity, the acts relied on before the outbreak of the war must have been in execution of, or in connection with, any crime within the jurisdiction of the Tribunal. The Tribunal is of the opinion that revolting and horrible as many of these crimes were, it has not been satisfactorily proved that they were done in execution of, or in connection with, any such crime. The Tribunal therefore cannot make a general declaration that the acts before 1939 were Crimes against Humanity within the meaning of the Charter, but from the beginning of the war in 1939, War Crimes were committed on a vast scale, which were also Crimes against Humanity; and insofar as the inhumane acts charged in the Indictment, and committed after the beginning of the war, did not constitute War Crimes, they were all committed in execution of, or in connection with, the aggressive war, and therefore constituted Crimes against Humanity.[40]

There were twenty-two Nazi leaders who were indicted. Nineteen were found guilty, of which only two- Julius Streicher and Baldur Von Schirach were found guilty of crimes against humanity.[41] A perusal of the Nuremberg judgment reveals that the Tribunal was prepared to relax its restrictive interpretation in relation to a connection to an armed conflict when proscribed acts were perpetrated against the non-German population as evidenced in the Tribunal’s own reasoning:

Von Schirach is not charged with commission of War Crimes in Vienna, only with the commission of Crimes against Humanity…. Austria was occupied pursuant to a common plan of aggression, so [its] occupation is, therefore 'a crime within the jurisdiction of the Tribunal’.... As a result, 'murder, extermination, enslavement, deportation, and other inhumane acts' and 'persecutions on political, racial, or religious grounds' in connection with this occupation constitute a Crime against Humanity.[42]

This line of reasoning is reflected in finding Constatin Von Neurath guilty of crimes against humanity for committing proscribed acts in Czechoslovakia (another non-German territory annexed before September 1, 1939) before the official declaration of war.[43] Similarly, in finding Streicher guilty of crimes against humanity, no mention was made to a war nexus.[44] It is also interesting to note that while those found to be guilty of crimes against humanity were sentenced to the death penalty whereas those who were found guilty of waging an aggressive war were sentenced to life imprisonment.[45] It is therefore fair to say that the Tribunal was satisfied with a tenuous link to armed conflict while interpreting crimes against humanity.

It remains controversial whether the Nuremberg Charter contravened the nullem crimen principle. Some felt that the principle of non-retroactivity had to give way to the overriding need for accountability for large scale atrocities recognized as criminal by all nations.[46]

 

Entrenchment in Customary International Law and Elements of Crimes against Humanity

Crimes against humanity forms an integral part of the Nuremberg principles which were promptly endorsed by the United Nations.[47] In 1950, the International Law Commission (ILC) was entrusted with the responsibility to formulate the ‘principles of international law’ recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal.”[48] In its report, the ILC dropped the phrase ‘before or during war’ from the definition of ‘crimes against humanity’ but at the same time observed that this did not mean the crime could be ‘committed only during war’ but also ‘before a war in connection with crimes against peace.’[49] 

Legal instruments that adopted the concept soon after the Nuremberg Charter was formulated includes, as discussed earlier, the Control Council Law No. 10 of 1945  which added ‘rape’, ‘imprisonment’ and ‘torture’ to the list of inhumane acts and did not include the requirement for the crime to take place in the context of an armed conflict.[50] It was also adopted in the Tokyo Charter but it did not include persecutions on religious grounds.[51] The basis for this exclusion was probably the fact that such crimes had not been committed by the Japanese on a large scale.[52] Examples of subsequent international legal instruments that adopted crimes against humanity, with or without a nexus to armed conflict includes the Genocide Convention[53] (without an armed conflict nexus), the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity 1968[54] (without an armed conflict nexus), the Apartheid Convention 1973[55] (without an armed conflict nexus), and the Inter American Convention on Enforced Disappearance[56] (without an armed conflict nexus).

The Security Council of the UN, in adopting the ICTY Statute required a connection with an armed conflict.[57] However, the ‘Tadić Jurisdiction Decision’[58] held that crimes against humanity under customary international law need not be linked to international armed conflict or any conflict at all, thus making a departure from the requirement enumerated in the Nuremberg and Tokyo Charters.[59] When it came for the Security Council to adopt the ICTR Statute, it dropped the requirement of an armed conflict nexus but required discriminatory intent in each of the enumerated acts of crimes against humanity.[60] The ICTR recognised this fact in Prosecutor v. Kayishema and Obed Ruzindana[61]. The ICTR Statute was in response to the Rwandan atrocities where the Tutsis were singled out for their ethnic origins (discrimination on racial grounds Art 3 (h)). Attacks were also made against Tutsis and some Hutus who were perceived to support the Tutsi dominated government. Akayesu[62] held that discrimination on that basis (i.e. political ideology) would satisfy the requirement (discrimination on political grounds, Art 3 (h)). Akayesu further held that inhumane acts that do not fall within any of the discriminatory categories could still be crimes against humanity, if the perpetrator intended to commit the acts to further his attacks on the group discriminated against on one of the discriminatory grounds.[63]

The Rome Conference 1998[64], culminating in the adoption of the Rome Statute of the International Criminal Court (Article 7)[65] requires the acts to be committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack[66]. The Rome Statute emphasises the mens rea elements, i.e. ‘knowledge of the attack’. There was a concern during the Rome Conference, prior, to the adoption of the Statute, how to differentiate between a so called ‘crime wave’ or anarchical behaviour, for example, after a natural disaster which even if ‘widespread’ will not by itself constitute crimes against humanity. The phrase ‘knowledge of attack’ therefore serves the purpose that an accused was aware of the context of a widespread or systematic attack directed against a civilian population in which he carried out a proscribed act. Thus, ensuring a so called ‘crime wave’ absent the context will not be crimes against humanity[67]. Enforced disappearance and apartheid were included as new punishable acts. The scope of some proscribed acts in other international instruments, like deportation, imprisonment and rape were expanded. The Rome Statute added ‘forcible transfer of population’ as an alternative to ‘deportation’ (Art 7 (d)). The offence of ‘imprisonment’ has been expanded to include ‘other severe deprivation of physical liberty in violation of fundamental rules of international law’ (Art 7 (e)). Under ‘sexual offences’ the Rome Statute adds ‘ sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity’ (Art 7 (g)), to the existing offence of ‘rape’ as enumerated in international legal instruments that preceded the Rome Statute. ‘Persecution’ under the Rome Statute requires a discriminatory animus in that, it must be ‘against any identifiable group or collectivity’ on discriminatory grounds including ‘political, racial, national, ethnic, cultural, religious, gender’ as defined in paragraph 3 of the Statute, or ‘other grounds that are universally recognized as impermissible under international law’ (Art 7 (h)). The requirement that the widespread or systematic attack be on a civilian population was a new requirement introduced by the Rome Statute. This new development was never a requirement enumerated in past definitions of crimes against humanity and had in fact been explicitly rejected in ICTY case law.[68] However, Robinson argues that the definition of crimes against humanity under the Rome Statute is not an innovation but reflective of the developments of international humanitarian law since Nuremberg.[69] Article 7 furthermore requires that the widespread or systematic attack be carried it pursuant to or in furtherance of a State or organizational policy to commit such an attack.

Apart from the definitions enumerated in the aforementioned international instruments, a few domestic prosecutions of crimes against humanity took place, in several jurisdictions ranging from Israel to Canada, which are also important sources. The Eichmann trial in Israel, Barbie in France, Touvier again in France, and Finta in Canada were all notable domestic prosecutions.[70]

The ICC Elements of Crimes[71] and instruments of other tribunals like the Special Court for Sierra Leone[72] contains definitions of crimes against humanity and a comparable list of inhumane acts that would constitute the crime. In the aftermath of the constitution of ICTY, ICTR and more importantly, post Rome Statute of 1998 - ‘widespread or systematic attack directed against any civilian population’ is now considered a standard contextual threshold for the contemporary definition of crimes against humanity. This contextual threshold requirement is critically examined in conjunction with the Bangladeshi Statute in the next part of the paper and as a corollary issue the ‘policy’ element i.e. that the widespread or systematic attack be in pursuance or in furtherance of a State or organisational policy. Attention is also paid to its customary status.

While the requirements in the definitions of crimes against humanity contained in the legal instruments mentioned vary, in light of the wide support the concept of crimes against humanity has garnered since the formulation of the Nuremberg Charter, it can be said that it is firmly entrenched in customary international law today. Whether or not that was the case prior to the last decade of the 20th century is contentious. The idea of a convention on crimes against humanity has been mooted and in 2013 the ILC placed the issue on its agenda.[73]

Generally, the elements of crimes against humanity, today is understood as:  the act is inhumane in nature and character, causing great suffering, or serious injury to body or to mental or physical health; the act is committed as part of a widespread or systematic attack; and the act is committed against members of the civilian population.[74]

Bangladeshi Statute-International Crimes (Tribunals) Act 1973

Section 3(2)(a) International Crimes (Tribunals) Act 1973 defines ‘Crimes against humanity’ as:

namely, murder, extermination, enslavement, deportation, imprisonment, abduction, confinement, torture, rape or other inhumane acts committed against any civilian population or persecutions on political, racial, ethnic or religious grounds, whether or not in violation of the domestic law of the country where perpetrated;

Examination of the legislative history of the said Act reveals that the framers were inspired by the Nuremberg Charter. As Linton points out, the Bangladeshi Statute is an ‘adaptation’[75] which came with certain changes. For instance, in addition to ‘murder’, ‘extermination’, ‘enslavement’, ‘deportation’ and ‘other inhumane acts’, the ICTA definition of ‘crimes against humanity’ added the specific acts of ‘imprisonment’, ‘abduction’, ‘confinement’, ‘torture’ and ‘rape’.[76] ‘Ethnicity’ was added to the provision relating to persecution and the armed conflict nexus was eliminated by the decision to not include the phrase ‘before or during the war’.[77]

Nexus to armed conflict requirement

Geoffrey Robertson criticises the Bangladeshi Tribunals for not establishing that the crimes enumerated in the Nuremberg Charter required a nexus to a conflict between states and that by 1971 that nexus was no longer required. The said crimes were ‘available (but not availed of) for civil wars before its true scope was identified in Tadic[78](the ICTY ruling that there is no requirement of a nexus to armed conflict). For Robertson, it was important to acknowledge that the crimes in the Nuremberg Charter came with a caveat that they can only be committed in international armed conflict.[79] He concedes that with India’s entry into the war in the latter stages, the conflict took an ‘international’ character and he also agrees that India had been providing material support to the war effort before its official entry. However, the early parts of the conflict post ‘Operation Searchlight’ Robertson defines as ‘a purely internal all Pakistan internecine war’[80]. He argues that by using dates on indictment (considering India’s material support to the cause from the early part of the conflict gave the conflict an ‘international’ character) the connection to an ‘international’ armed conflict could have been maintained and criticises the Bangladeshi Tribunals for tasking the prosecution to do so.[81] To maintain a requirement to an armed conflict of international character, would have meant that the atrocities in the early part of the conflict could never be termed as ‘crimes against humanity’ and there is the associate issue of finding a precise date from whence forth the conflict took an ‘international’ character. If it is the official date of India’s entry into war effort, then it would have been the last days of the conflict meaning the vast majority of the atrocities cannot be described as ‘crimes against humanity’. If it is earlier, as Robertson suggested, India’s material help to the war effort gave the conflict an ‘international’ character, much earlier than its official entry, what is to be that precise date? Robertson suggests that the Tribunals could have decided that crimes against humanity can take place in a civil war and the requirement in the Nuremberg Charter is simply a jurisdictional limitation applicable to the Nuremberg trials for crimes committed by the Nazis in Europe.[82] He does, however, concede that this is the approach the Supreme Court took in the Molla[83] case.[84] Keeping the principle of sovereignty aside, did the Bangladeshi legislature actually err in not maintain a nexus to an armed conflict? What was the customary law status of the notion in 1973?

Today, the vast majority of legal instruments mentioned earlier in the paper and case precedents from ICTY and ICTR jurisprudence opposes a nexus to an armed conflict.  The requirement was present in the Nuremberg Charter (as discussed) but it is considered as a ‘jurisdictional’ limitation.[85] The ICTY Statute did include the nexus but the Tadic case (discussed earlier) rightly decided that it was an aberration and indeed a nexus is not required.

It has been mentioned earlier that the Allied Control Council, while adopting the Control Council Law No. 10 did not feel obliged to maintain the armed conflict nexus. Subsequent military case laws differ as well. The Ohlendorf and Altstotter cases decisions concluded that the connection was unnecessary. A number of Conventions like the Genocide Convention, the Convention on the Non Applicability of Statutory Limitations to War Crimes and Crimes against Humanity 1968 came before the events of 1971 and did not feel the need to include an armed conflict nexus. Similarly, the Apartheid Convention came in 1973, the same year the Bangladeshi Statute was enacted and it too did not require a connection to armed conflict. The Inter American Convention on Enforced Disappearance came into being in 1994, yet it did not include a requirement in the definition that proscribed acts had to take place before or during an armed conflict.

The International Law Commission’s (ILC) 1951 Draft Code of Offences Against the Peace and Security of Mankind showed a nexus between armed conflict and crimes against humanity. However, the ILC eliminated the requirement in the 1954 Draft Code[86]. On 12 December UN General Assembly, adopted resolution 52/135, entitled ‘Situation of Human Rights in Cambodia’.[87] The said resolution endorsed that the Khmer Rouge regime committed the most serious human rights violations and that no Khmer Rouge leader was brought to justice. I also took note of the request made by Cambodian authorities for assistance in responding to past violations of Cambodian and international law, including the possibility of appointment, by the Secretary General, a group of experts to examine the evidence of Khmer Rouge atrocities and propose further measures. In July 1998, pursuant to resolution 52/135, the UN Secretary General appointed a group of experts with a mandate to undertake an evaluation of existing evidence to determine the nature of crimes committed by the Khmer Rouge between 1975 to 1979. The Group was also tasked to assess the feasibility of bringing the Khmer Rouge leaders to justice before an international or national criminal jurisdiction and the manner it could be done via, apprehension, detention or extradition to be determined by consultations with governments involved.[88] In para 71 of its Report the Group of Experts for Cambodia[89] (the Group), examined the issue of the nexus of armed conflict to that of crimes against humanity. It noted that if the nexus was still required as of 1975, then the Khmer Rouge’s atrocities could not be termed as crimes against humanity. It also noted that historians have not linked the bulk of Khmer Rouge atrocities to armed conflict. However, the Group believed that for the purpose of considering a jurisdiction to prosecute Khmer Rouge officials, the inclusion of crimes against humanity was legally justified.[90] It offered its opinion that by 1975 the bond between armed conflict and crimes against humanity appears to have been severed.[91] The Group in its report looks at the developments since Second World War and noted that the ILC dropped the nexus in its 1954 Draft Code (discussed earlier in this passage). The Group also took note of State views in drafting the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (mentioned in the preceding paragraph of this paper) suggesting that the nexus was not necessary.[92]  Although Pakistan did not ratify the 1968 Convention it voted in favour. Niall Macdermot argued that Pakistan’s affirmative vote reflected acceptance that crimes against humanity was not ‘restricted to international war situations’.[93] The Group of Experts of experts for Cambodia, in its report, further noted that the prosecutions of the Khmer Rouge leaders for such violations (meaning crimes against humanity) will not violate a fair and reasonable reading of the nullem crimen principle.[94] It is therefore submitted that while there is no requirement to have an armed conflict nexus today, equally the Bangladeshi legislature cannot be faulted, in light of the developments since the Nuremberg Charter, for not maintaining an armed conflict nexus in the definition of crimes against humanity in 1973.

Discriminatory Animus Requirement

It is well settled now, that, with the exception of the ICTR (Art 3),[95] a discriminatory intent is not required in customary law except only in relation to the crimes of ‘persecution.’[96] In Akayesu[97] the Appeals Chamber of the ICTR unequivocally held that the discriminatory intent requirement is only limited to the Tribunal (i.e. the events in Rwanda to which the ICTR is applicable). However, some domestic prosecution cases took an approach that required a discriminatory animus. For example, the French cases of Barbie[98] and Touvier[99] suggested that a policy of discrimination is required in relation to crimes against humanity. The Rome Statute does not require crimes against humanity to be committed with discriminatory intent (except for the crime of ‘persecution’). The instrument for the Special Court for Sierra Leone similarly does not require the discriminatory animus.

In relation to the crime of ‘persecution’, discriminatory intent is indeed required. Art 5(h) of the ICTY[100] and Art 3(h) of the ICTR[101] define ‘persecution’ on political, racial or religious grounds. Art 7(1)(h) of the Rome Statute[102] contains within itself a more expanded list adding ‘national’, ‘ethnic’, ‘cultural’, or ‘gender’ grounds to the list of prohibited grounds in ICTY and ICTR. It also includes ‘other grounds that are universally recognized as impermissible under international law’ and the additional requirement that persecution be committed in connection ‘with any act referred to in this paragraph’ (i.e. any other listed acts within Art 7(1)) or ‘any crime within the jurisdiction of the Court’.[103]

In Kordic and Cerkez[104]the ICTY Tribunal noted that the crime of persecution needs ‘careful’ and ‘sensitive’ development in light of the nullum crimen sine lege principle. This was so because the Tribunal felt that the treaties or case laws do not provide a comprehensive list of acts that can be considered as constituting the crime of ‘persecution’. The Tribunal in Kordic and Cerkez was also cognisant of the fact that ‘persecution’ as such is not known in the world’s major criminal justice systems.[105] Notwithstanding, the virtuous concern of the ICTY Tribunal, many would (this writer included!) be troubled by such assertions. Many of the so-called world’s major criminal justice systems also happen to be the more ‘influential’ and ‘powerful’ ones with ‘chequered’ past. Often times it’s a country that has won its independence through armed struggle and has actually witnessed its population subjected to forms of ‘persecution’ by an oppressive regime (in many cases foreign powers) that would find the need to legislate against ‘crimes of persecution’ post transition to independence (as in the case of Bangladesh) or post atrocities inflicted upon its populace. There may well be a paucity of legislation covering ‘persecution’ in the so-called world’s major criminal justice systems because they did not need one.

In Kupreskic et al.[106], the Trial Chamber of the ICTY espoused its view on the need for precise language in defining ‘persecution’ and that ‘it is not enough to define a core assortment of acts and to leave peripheral acts in a state of uncertainty…there must be clearly defined limits on the types of persecution’.[107] When Art 7(1)(h) of the Rome Statute was drafted (list of discriminatory grounds), it cautiously but deliberately added ‘other grounds that are universally recognised as impermissible under international law.’ The term ‘universal’ denotes a high threshold. Cryer contends that a high standard was considered necessary in order to satisfy the principle of legality.[108]

The customary status is unclear in relation to the Rome Statute’s additional requirement of ‘persecution’ be committed in connection with any crime within the Court’s jurisdiction (Art 7 (1) (h)) or in conjunction with any other listed act within Art 7(1). ICTY Tribunal jurisprudence in Kupreskic et al.[109] noted that Art 7(1)(h) is not consonant with customary international law.[110] The ICTY Trial chamber did concede that the Rome Statute may well be indicative of opinion juris of many States.[111]

At the time of adoption, many States expressed concerns at the ‘possible elasticity of the concept of persecution,’[112] to perhaps include discriminatory practices within member states that may well be issues of human rights violations but if classified as ‘persecution’ will engage prosecutions. The rationale behind the additional requirement that the ‘persecution’ be connected to any other listed act in Art 7(1) or a crime within the Court’s jurisdiction ensures at least a context of more recognised form of criminality.[113] Cassese, however, argues that the requirement is inconsistent with the elimination of the general nexus (generally crimes against humanity need not have a discriminatory animus) requirement in the Nuremberg Charter and therefore is a restriction on customary law.[114] 

The Bangladeshi Statute includes ‘persecution’ on political, racial, ethnic or religious grounds (Section 3(2)(a) International Crimes (Tribunals) Act 1973 definition of crimes against humanity). Of the discriminatory grounds provided for in the Bangladeshi Statute, only ‘persecution’ based on ‘ethnicity’ was not present in the Nuremberg Charter, ICTY or ICTR. The other grounds, ‘political’, ‘racial’ or ‘religious’ grounds were all present within the definition of crimes against humanity as enumerated in the Nuremberg Charter (Art 6(c)), ICTY (Art 5 (h)) and ICTR (Art 3 (h)). However, as already mentioned, the Rome Statute does provide an ‘ethnic’ ground for ‘persecution’ in its definition (Art 7 (1) (h)).

In Chief Prosecutor Versus Motiur Rahman Nizami[115] the Bangladeshi Tribunal found the accused Nizami guilty, among other charges, the charge of committing murders, rape and persecution in the village Karamja (this was Charge No. 4 against the accused). Under this charge, the accused was alleged to have planned, conspired and directed the killing of a resident (Habibur Rahman Sarder) of the village in April 1971 for allegedly helping freedom fighters. In the following month, under the accused’s leadership, group of Pakistani soldiers and collaborators surrounded the house of Megha Thakur, a local family, killing members of the family, gang raping women (Thakur’s daughter and daughter in law and at least two other women) and looted the house. A nearby house belonging to the Pramanik family was destroyed and set on fire. The Tribunal found the accused was present in person for both the occurrences beyond reasonable doubt and found him guilty for substantially contributing the actual commissions of the offences of murder, rape and persecution as crimes against humanity.

It is well accepted that during the atrocities of 1971, the Hindu population was singled out for brutal treatment by the Pakistani armed forces and their local collaborators. People were indeed being persecuted based on their ethnicity, real or perceived. The provisions within the Bangladeshi Statute simply reflect that: some forms of crimes against humanity, namely ‘persecution’ did take place on the grounds of ‘ethnicity’ as much as for political, racial or religious reasons.

Following on from the above discussion, discriminatory animus is not required in customary law except in relation to the prohibited act of ‘persecution’. The current customary law status of rules pertaining to the crime of ‘persecution’ as enumerated in the Rome Statute is uncertain as evidenced in ICTY Tribunal jurisprudence and academic commentaries. Even if the rules were reflective of custom, there was no possibility of a 1973 Act to follow a custom that emerged almost three decades later (Rome Statute came into effect in 2002) without engaging the nullem crimen principle.

Contextual Threshold and the Policy Requirement

Absent from the text of the Bangladeshi Statute of 1973 is the now standard requirement of widespread or systematic attack on any civilian population. There are three different strands of thought on this issue. Some commentators feel that without this contextual threshold, being proven by a prosecution, the proscribed acts cannot be considered an ‘international crime’.[116] While others argue that the onus is upon the Bangladeshi tribunals to establish the state of customary international in 1971 and to rule whether crimes against humanity in 1971 could only occur through a widespread or systematic attack.[117] Yet another school of thought is of the view that widespread or systematic attack on any civilian population emerged as the accepted formulation for the contextual threshold (thus reflecting customary international law) only in the last decade of the twentieth century.[118]

Beginning with the last assertion, that the emergence of the notion ‘widespread or systematic attack on a civilian population’ came to be accepted as the standard formulation for the contextual threshold only in the 1990’s; Cryer provides a disclaimer that ‘some aspects of the definition of these terms remains to be resolved.’[119] It is now accepted post Akayesu,[120] that the ‘test’ of whether an act carried out was in the context of a widespread or systematic attack is disjunctive. This means that only ‘widespread’ or ‘systematic’ needs to be proved. The Akayesu clarification was important because the French version of the ICTR Statute referred to the phrase ‘conjunctively’ (généralisée et systématique).[121] However, Cryer is of the view that defining ‘attack’ requires a minimal aspect of both widespread and systematic.[122] He arrives at this conclusion by relying on ICTY Tribunal jurisprudence in Prosecutor v. Haradinaj, Balaj and Brahimaj[123] which indicated that ‘an attack directed against a civilian population’ entails some modest degree of scale and organisation.[124] This rationale is also reflected in Art. 7(2)(a) of the Rome Statute.[125]

There are commonalities in ICTY, ICTR, SCSL (Sierra Leone) and ICC (International Criminal Court) jurisprudence in defining the term ‘widespread.’ The ICTY Tribunal in Kunarac,[126] ICTR in Nahimana,[127] the SCSL in Taylor[128]and the ICC in Al Bashir (arrest warrant case)[129] generally connotes ‘large scale nature of the attack and the number of victims.’[130]ICTY Tribunal jurisprudence goes further in Kordic and Cerkez[131] holding that while ‘widespread’ would typically mean a collection of numerous inhumane acts, a singular act of ‘exceptional magnitude’ could also be described as widespread.[132]

The other term that may require proof of the disjunctive test is ‘systematic’. There has been some small divergence in the interpretation of the term in ICTY and ICTR tribunal jurisprudence. For instance, Akayesu,[133] defines ‘systematic’ as thoroughly organised following a regular pattern based on a ‘common’ policy and involves substantial resources public or private.[134] Kai Ambos contends that while a significantly high threshold is required to prevent ‘non-widespread crimes’ from being labelled as crimes against humanity, Akayesu definition ‘sets the bar too high’.[135] ICTY Tribunal in Kunarac[136] for example, defines the term as ‘organised nature of acts of violence and the improbability of their random occurrence’.[137] Kunarac relies on Tadic[138] Trial Chamber judgment which stresses the need to separate ‘isolated’ or ‘random’ acts from crimes against humanity and it is this need that led to the inclusion of the requirement that acts be directed against a civilian population and that ‘a finding of widespreadness, which refers to the number of victims, or systematicity, indicating that a pattern or methodical plan is evident, fulfils this requirement.’[139] The ICTR itself has simplified the Akayesu requirement in Nahimana[140] and echoes Kunarac in defining ‘systematic’ as ‘the organised nature of the acts of violence and the improbability of their random occurrence’.[141] The Tadic case in its judgment approves the possibility of a single act against a single victim or a limited number of victims could qualify as a crime against humanity so long there is a connection with a widespread or systematic attack against a civilian population (Vukovar Hospital Decision).[142]

It is evident from the reading of the Rome Statute Art 7(2)(a) and the Tadic judgment (dated 3 March 2000), that one of the reasons for the emergence of contextual threshold in the 1990’s was to exclude the so-called ‘random’ crimes, which notwithstanding even multiplicity, absent the context of a widespread or systematic attack against a civilian population (a sense of collectivity drawn from the scale and coordination) will not qualify as ‘crimes against humanity.’ This is the ‘policy’ element and in theory this serves to differentiate the two kinds, namely, that crimes take place in pursuance of an organizational policy (state, government or otherwise). This is controversial.

The Nuremberg Charter did not explicitly require the existence of a State or organizational policy. However, as noted in the Tadic judgment,[143] the Nuremberg Tribunal stressed that the inhumane acts of crimes against humanity were committed as part of a policy of terror and were in many cases organised and systematic.[144] In the Justice case[145] decided under the Control Council Law 10[146], some feel that the tribunal indicated that there must be proof of ‘conscious participation in systematic government organised or approved procedures amounting to atrocities and offences of the kind specified in the act and committed against populations or amounting to persecution on political, racial, or religious grounds’.[147]However, as we shall see that such an assertion is disputed in ICTY jurisprudence. Other instances of domestic prosecutions such as the French case of Barbie[148] and the Canadian case of Finta[149] indicated a requirement of government policy. Guenael Mettraux[150], in his exhaustive work, shows the growing disquiet over the policy question in legal jurisprudence. Generally, the concern was (and this was evident in the ICC negotiations) it contradicted the disjunctive ‘widespread or systematic’ test and was too onerous a burden. The ICTY Appeals Chamber in Kunarac[151] disregarded the need to have a policy requirement. Quite unequivocally, it stated ‘there was nothing in the Statute or in customary international law at the time of the alleged acts which required proof of the existence or policy to commit these crimes’[152]. The Appeals Chamber in Kunarac examined the following precedents and legal instruments to hold that there is no ‘policy’ requirement under customary international law.

The Appeals Chamber examined Article 6(c) of the Nuremberg Charter. It considered the Nuremberg Judgements, pages related to Streicher[153] judgment and the von Schirach [154]judgment (these cases has already been discussed earlier in the paper). The Appeals Chamber also considered Article II(1)(c) of Control Council Law No 10 (definition of crimes against humanity). It looked at the following cases: In re Ahlbrecht,[155] Ivan Timofeyevich Polyukhovich v The Commonwealth of Australia and Anor,[156] Attorney-General v Adolph Eichmann,[157] Mugesera et al. v Minister of Citizenship and Immigration,[158] In re Trajkovic,[159] Moreno v Canada (Minister of Employment and Immigration),[160] Sivakumar v Canada (Minister of Employment and Immigration)[161] and concluded that there is ‘policy’ element requirement in these cases.

The Appeals Chamber also perused UN resolutions and  reports[162], Yearbook of the International Law Commission (ILC),[163] Report of the ILC on the work of its 43rd session,[164] ILC Report on its 46th session (this session considered Drafting of Statute for International Criminal Court),[165] ILC Report on its 47th session,[166]; ILC Report on its 48th session[167]. The Appeals Chamber found no compelling evidence that the ‘policy’ element is a requisite in customary international law.

In Jelisi (Appeal Judgement, para 48)[168] the Chamber stated (in relation to the crime of genocide) that ‘the existence of a plan is not a legal ingredient of the crime.’[169] The Appeals Chamber in Kunarac relied on this to find no need of a nexus to a ‘policy’. In Kunarac, the Appeal Chamber also viewed certain decisions which suggested that a plan or policy is required in law, went ‘clearly beyond the text of the statute to be applied’.[170] It provides the case of Public Prosecutor v Menten[171] as an example. It also suggests that cases which did refer to a plan or policy were in fact merely highlighting the factual circumstances of the case at hand, rather than impose an independent constitutive element.[172] It casts doubt over the Trial of Josef Altstötter and Others (Justice case) (discussed earlier), which many use in support of the plan or policy requirement, holding that it has been shown not to constitute an authoritative statement of customary international law.[173]

Balanced against the ICTY jurisprudence which suggests that there is no policy requirement in customary international law, is Art 7(2)(a) of the Rome Statute which indicates that a policy is required. The Statute has been adopted by many member states, thus, the Rome Statute itself is an indicator of custom. Cryer is of the opinion that the ‘main indicators of customary law are now divided.’[174]

In Abdul Quader Molla case (Molla)[175] (the case is discussed in greater details in the latter parts of this paper) the Appellate Division (AD) (highest court of Bangladesh) held that ‘the prosecution need not require to prove that while committing any of offences there must be 'widespread and systematic' attack against 'civilian population'.’[176] However, then in the same judgment the AD notes, which at the first instance of reading, may appear contradictory. The AD held (in page 585 of its 790 page robust judgment per A H M Shamsuddin J) that while ‘it is not a requirement under the Act for the attack to be wide spread or systematic. This requirement of the international law being in conflict with our law, this cannot have a footing at our Tribunals trials. Yet, as discussed more comprehensively, there are ample evidence, supported by judicial notice, that the attack was, nonetheless, widespread and systematic.’[177] Read plainly, the question arises, why would the AD, on one hand reject the notion of ‘widespread or systematic attack’, yet still hold that on the basis of ‘ample evidence’ the attacks were still widespread and systematic?

I try to understand this apparent contradiction in the context of the discussion thus far particularly, in light of the divergence in legal jurisprudence on the customary status of the ‘policy’ requirement that is associated with the contextual threshold i.e. widespread or systematic attack directed against a civilian population. On the one hand, the emergence of the contextual threshold coincided with the Rome Statute and the Tadic judgment in the 1990’s which requires a ‘policy’ element that the prohibited acts be carried out in pursuance of an organised policy. On the other hand, recent ICTY Tribunal jurisprudence is explicit that such a norm is not required in customary international law and Kunarac adduces evidence to support the assertion. Then there are domestic prosecution cases post Nuremberg Trials, which does indicate a ‘policy’ requirement and refers to ‘conscious participation in systematic government organised or approved procedures (Justice case).’[178] Is it possible that the AD rightly viewed the current state of affairs as contradictory and was making a ‘factual’ point about the ‘nature’ of attacks carried out by the Pakistani regime with the support of their local collaborators? The ICTY Appeals Chamber in Kunarac makes this point about cases decided post Nuremberg where the phrases ‘widespread’ or ‘systematic’ was used as factual characterization. Can the same be true for the AD’s assertion in the Molla case?

Turning the attention back to the three strands of thought regarding the contextual threshold requirement with which this section began. Firstly to hold that absent the contextual threshold, the prohibited acts cannot be considered ‘international crimes’ will be egregious without establishing if the now accepted formulation was indeed reflective of custom in 1971. Proponents who take this stance relies on an opinion from the Legal Committee of the United Nations War Crimes Commission and the Development of the Laws of War (LCUNWCC)[179] which provides that ‘As a rule systematic mass action, particularly if it was authoritative, was necessary to transform a common crime, punishable only under municipal law, into a crime against humanity, which thus became also the concern of international law. Only crimes which either by their magnitude and savagery or by their large number or by the fact that a similar pattern was applied at different times and places, endangered the international community or shocked the conscience of mankind, warranted intervention by States other than that on whose territory the crimes had been committed.’[180] In not so many words, but the assertion is that there is indeed a requirement that there be systematic mass action (denoting scale) for ‘common’ crime to become an offence that engages international law.

Relative to this point is the second strand. Linton contends that it is up to Bangladeshi Tribunals to determine the customary status of the formulation in 1971.[181]  She cites two examples of events that took place in the 1970’s which has used similar phrasing to ‘widespread or systematic attack’. The Inter-American Court of Human Rights in the Almonacid-Arellano et al v. Chile[182] case argued that ‘crimes against humanity’ were committed as part of a ‘systematic and general pattern against the civilian population’ in 1973. Post the ICTY Appeals Chamber judgment in Kunarac, the mere presence of the phrases should not be deemed as evidence of imposing ‘constitutive element’. Many of the cases that were decided prior to the emergence of the formulation merely used the phrases as ‘factual characterization’ of an attack. Hence, a more nuanced and detailed approach is warranted before, it can be claimed with certainty that a precedent is representative of custom. The second example was the incorporation of the phrase ‘widespread or systematic attack against the civilian population’ in the definition of ‘crimes against humanity’ in Article 5 of the Law on the Establishment of Extraordinary Chamber in the Courts of Cambodia set up to prosecute crimes committed by the Khmer Rouge between 1975-1979.[183] 

It is important to ascertain State Practice. The essence of custom according to Art 38 of Statute of the International Court of Justice (ICJ) is that it should constitute ‘evidence of a general practice accepted as law.’[184] In the Libya/Malta case[185] the International Court noted that the substance of customary law must be looked for primarily in the actual practice and opinio juris of states.[186] To this effect, the Special Rapporteur’s Fourth report on the draft code of Offences against the Peace and Security of Mankind[187] is particularly helpful. The emergence of the legal opinion from LCUNWCC did not enjoy conclusive support. Far from it, contrary opinions were documented in 1950.[188] Thiam, in his report notes that countries of all shapes and sizes from the Holy See (Vatican) to Brazil to the Netherlands to Belgium to Poland to Switzerland held contrary opinion at the Eighth International Conference for the Unification of Penal Law held in 1947.[189] Thiam concluded that ‘the distinction resulting from the mass nature of the act is, in any case, not conclusive. There are those who still consider that the systematic violation of a single human right is a crime against humanity.”[190] In light of the absence of conclusive state practice the two strands of criticism of the Bangladeshi trial process not incorporating the contextual threshold falls away. It is most likely that the contextual threshold of widespread or systematic attack against a civilian population emerged in the last decade of the 20th century. However, it must be noted that the position is not so clear with the associated ‘policy’ requirement enumerated in the Rome Statute but held not a custom in Kunarac by the ICTY Appeals Chamber.

Applicability of Customary International Law- Bangladeshi Court’s view[191]

The paper will remain in complete without a brief discussion of Bangladesh’s court’s decision to not be bound by customary international law. In Abdul Quader Molla case (“Molla”)[192] the Appellate Division (highest court of Bangladesh) held:

“Whereas, under our Act, 1973 the tribunal has jurisdiction to prosecute and punish any person irrespective of his nationality who being a member of any armed, defence or auxiliary forces commits, whether before or after the commencement of the Act, Crimes against Humanity, Crimes against Peace, Genocide and other crimes connected therewith during the period of war of liberation. The offences of murder, extermination, rape or other inhumane acts committed against civilian population or persecutions on political, racial, ethnic or religious grounds are included in the offence of crimes against Humanity. " "For commission of the said offence [crimes against Humanity], the prosecution need not require to prove that while committing any of offences there must be 'widespread and systematic' attack against 'civilian population'. It is sufficient if it is proved that any person/ persons attack against 'civilian population'. It is sufficient if it is proved that any person/ persons committed such offence during the said period or participated or attempted or conspired to commit any such crime during operation search light in collaboration with the Pakistani Regime upon unarmed civilian with the aim of frustrating the result of 1970 National Assembly election and to deprive the fruits of the election result.”[193]

 

The Appellate Division reasoned that while the 1973 Act was ‘based on the foundation of international legal instruments’ and conforms to international standards, including ‘international’ crimes within the jurisdiction of the Tribunals, this did not alter its ‘domestic’ identity or create scope for customary international law to be its ‘guiding principles’.[194] As a result, the Appellate Division would not be bound to follow customary international law during trials involving the offences mentioned in Sections 3(2)(a)-(e), i.e. ‘crimes against humanity’, ‘crimes against peace’, ‘genocide’, ‘war crimes’ and ‘violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949’.  However, an accused charged with committing ‘any other crimes under international law’ under Article 3(2)(f) would remain entitled to claim the right to have customary international law followed during trial.[195] The AD sought opinions from seven amicus curiae, eminent jurists with a combined legal practice experience of more than 250 years! The decision to not be bound by customary international law was reached after an extensive and thorough investigation of legal jurisprudence and practices in other jurisdictions as enumerated in the judgment.

Among other reasons, the AD considered the Penal Code of 1860 and the Criminal Procedure Code 1882 to be sufficient for offences enumerated in the Article 3 (2) (a) – (e) except (f). Furthermore, the AD noted since the 1973 Act was devoid of any explicit provisions requiring guidance to be taken from the ICC’s Elements of Crimes or for that matter any other judicial entity – all of which were different in scope and content from the 1973 Act, it exempted the tribunals from depending on them.[196] The AD also clarified that in order for a ratified international covenant or convention to be enforceable in local courts, it would first have to be incorporated in the municipal laws.[197] The AD further added that while they are restricting the usage of customary international law in interpreting certain aspects of the definition of ‘crimes against humanity’ (areas it deems is covered by the domestic legislation), it is nonetheless free to take aid of the ‘ratio or observation made by tribunals’ and ‘treating them as persuasive […] authorities’[198] or taking aid of “provisions of international law” to assist in the exercise of interpretation[199]in the absence of domestic authorities.

In this manner according to Hossain, Bangladesh judiciary has adopted a ‘positivist-dualist’ approach to interpreting the crimes against humanity.[200] In rejecting the direct applicability of customary international law, the Appellate Division, nonetheless noted that the Prosecution had proved ‘by adducing reliable evidence beyond a shadow of doubt’ that the acts of killing and rape committed in 1971 against an ‘innocent unarmed civilian population’ were ‘widespread and systematic’.[201] I have earlier shared my views on this issue, Hossain is of the opinion that the court could have simply maintained the ‘positivist-dualist’ approach throughout.[202]

Conclusion

The notion of crimes against humanity, while may have been as old as humanity itself, it emerged as a normative legal concept at the beginning of the 20th century, becoming positive law with the formation of the Nuremberg Charter and reflected customary international law as it has been widely accepted. This paper attempted to trace those developments and examined mainly three elements and how those relate to the Bangladeshi Statute (1973 Act) and the trial efforts. Those elements were the nexus to an armed conflict, nexus to a discriminatory animus (particularly in relation to the crime of ‘persecution’) and the contextual threshold requiring prohibited acts to take place in relation to widespread or systematic attack directed against a civilian population. The Bangladeshi Statute has rejected the nexus to an armed conflict and this paper came to the conclusion that the Bangladeshi legislature could not be faulted to have severed that particular aspect. Similarly, it remains doubtful whether certain elements of crimes against humanity- namely the contextual requirement of widespread or systematic attack on any civilian population had crystallized as representing custom in 1971 when the tragic events took place in Bangladesh. The contextual threshold, if it emerged as customary international law, did so in the 1990’s. State practice before then suggests otherwise. The status of ‘policy’ requirement is still uncertain owing to divergent views of the indicators of customary international law. It is in this context, that the highest court of the land has noted that the tribunals set up to try offences under the 1973 Act, need not apply customary international law directly, although they are free to adduce persuasive authority to ‘international law’ and take aid in the exercise of the interpretation where domestic authorities are absent.

 

[1] Suzannah Linton, ‘Completing the Circle: Accountability for the Crimes of the 1971 Bangladesh War of Liberation’ (2010) 21(2) Criminal Law Forum 191-311 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2036374> accessed on 19 March 2020.

[2] M. Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application (Cambridge 2011) 136-46

[3] Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, December 20, 1945, 3 Official Gazette Control Council for Germany 50-55 (1946). Article II (1)(c)  Crimes against Humanity. Atrocities and offences, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated. <http://hrlibrary.umn.edu/instree/ccno10.htm>; <http://avalon.law.yale.edu/imt/imt10.asp> accessed on 19 March 2020.

[4] United States v Flick (1983) IX LRTWC 1.

[5] United States v Ohlendorf et al. (1948) 4 TWC 411.

[6] The Convention on the Prevention and Punishment of the Crime of Genocide was adopted by the United Nations General Assembly on 9 December 1948 as General Assembly Resolution 260. The Convention entered into force on 12 January 1951 <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CrimeOfGenocide.aspx> accessed on 19 March 2020.

[7] Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (Adopted and opened for signature, ratification and accession by General Assembly resolution 2391 (XXIII) of 26 November 1968; Entry into force: 11 November 1970) in accordance with article VIII

Article I (b) Crimes against humanity whether committed in time of war or in time of peace as they are defined in the Charter of the International Military Tribunal, Nürnberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations, eviction by armed attack or occupation and inhuman acts resulting from the policy of apartheid , and the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, even if such acts do not constitute a violation of the domestic law of the country in which they were committed. <http://www.ohchr.org/Documents/ProfessionalInterest/warcrimes.pdf> accessed on 19 March 2020.

[8] International Convention on the Suppression and Punishment of the Crime of Apartheid (Adopted by the General Assembly of the United Nations on 30 November 1973)

Article I. 1. The States Parties to the present Convention declare that apartheid is a crime against humanity and that inhuman acts resulting from the policies and practices of apartheid and similar policies and practices of racial segregation and discrimination, as defined in article II of the Convention, are crimes violating the principles of international law, in particular the purposes and principles of the Charter of the United Nations, and constituting a serious threat to international peace and security <https://treaties.un.org/doc/Publication/UNTS/Volume%201015/volume-1015-I-14861-English.pdf> accessed on 19 March 2020.

[9]  Inter-American Convention on Enforced Disappearance (Preamble): Reaffirming that the systematic practice of the forced disappearance of persons constitutes a crime against humanity <http://www.oas.org/juridico/english/treaties/a-60.html> accessed on 19 March 2020.

[10] Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Former Yugoslavia Since 1991, annexed to Report of the Secretary-General Pursuant to Paragraph 2 of U.N. Security Council Resolution 808, U.N. GAOR, May 19, 1993, U.N. Doc S/25704 (defining crimes against humanity as "the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population: (a) murder; (b) extermination; (c) enslavement; (d) deportation; (e) imprisonment; (f) torture; (g) rape; (h) persecutions on political, racial and religious grounds; (i) other inhumane acts."

[11] International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, art. 3, U.N. Doc. S/Res/955 (1994), 33 I.L.M. 1598, 1603 (1994) (defining crimes against humanity as "the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation; (e) Imprisonment; (f) Torture; (g) Rape; (h) Persecutions on political, racial and religious grounds; (i) Other inhumane acts.").

[12] Darryl Robinson, ‘Defining Crimes against Humanity at the Rome Conference’ (1999) 93 American Journal of International Law 43.

[13] Art 7 For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b)Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h)Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

[14] The International Commission of Jurists, The Events in Pakistan: A Legal Study by the Secretariat of the International Commissions of Jurists (ICJ 1972) 9.

[15] The Chief Prosecutor v Md. Idris Ali Sardar & Md. Solaiman Mollah (died at the stage of summing up of the case) Case No. 06 of 2015 <http://www.ict-bd.org/ict1/Judgment%202016/ICT%20No%2006.pdf> accessed on 19 March 2020.

[16] 1 Lakh in Bengali numerals is 100,000 [one hundred thousand].

[17] The Chief Prosecutor (n 15) 17-20.

[18] Supplementary Hamoodur Rehman Commission Report (unofficial version) (2007) <http:// boltapakistan.files.wordpress.com/2007/08/hamood_ur_rehman_commission.pdf> accessed on 19 March 2020; The Hamoodur Rehman Commission Report itself is available at <http://www.bangla2000.com/Bangladesh/Independence-War/Report-Hamoodur-Rahman/default.shtm> and <http://www.storyofpakistan.com/art.text.asp?artid=A094&Pg=1> accessed on 03 March 2020.

[19] Ibid.

[20] Susan Brownmiller, Against Our Will: Men, Women and Rape (Bentam Books 1975) 81.

[21] Suzannah Linton (n 1).

[22] The International Commission of Jurists (n 14) 9.

[23] Jean Graven, ‘Les crimes contre I’humanite’ (1950) 76 Hague Recueil 427, 433.

[24] The Martens Clause was named after the Russian delegate to the first Hague Conference to address the laws of war in the 1907 Hague Convention Respecting the Laws and Customs of War on Land and subsequent humanitarian law conventions, which first articulated the notion that international law transcends humanitarian principles that existed beyond conventional law.

[25] Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277.

[26] Dr John R Pritchard, The First Modem International Criminal Tribunal for Crimes against Humanity: Thoughts on the National and International Military Commissions on Crete 100 Years Ago see: <http://h-net.msu.edu/cgi-bin/logbrowse.pl?trx=vx&list=h-turk&month=9902&week=d&msg=kX1Jl3oikm3369ldZVFs%2Bw&user=&pw>.

[27] Leon Trotsky, ‘The Marxist Position on Individual Terrorism’ in Will Reissner (ed.) Leon Trotsky – Against Individual Terrorism (Pathfinder Press, 1974) 9 cited by M Sanjeeb Hossain in ‘The Search for Justice in Bangladesh – An Assessment of the Legality and Legitimacy of the International Crimes Tribunals of Bangladesh through the Prism of the Principle of Complementarity’ (PhD Thesis, University of Warwick, September 2017) at 165.

[28] Ibid.

[29] ‘France, Great Britain and Russia Joint Declaration’ (armenian-genocide.org, 24 May 1915) <http://www.armenian-genocide.org/Affirmation.160/current_category.7/affirmation_detail.html> accessed 04 June 2020.

[30] United Nations War Crimes Commission, History of the United Nations War Crimes Commission and the Development of the Laws of War (London, 1948).

[31] Phyllis Hwang, ‘Defining Crimes Against Humanity in the Rome Statute of the International Criminal Court’ (1998) 22(2) Fordham Journal of International Law 459.

[32] G. Werle and J. Bung, ‘Crimes against Humanity’ Summary (Crimes against Humanity) International Criminal Justice Sommersemester 2010 <http://werle.rewi.hu-berlin.de/04_Crimes%20against%20Humanity-Summary.pdf> 1.

[33] ‘Nuremberg Trial Proceedings Vol. 1: Charter of the International Military Tribunal’ (The Avalon Project) <http://avalon.law.yale.edu/imt/imtconst.asp#art6> accessed 04 June 2020.

[34] Robert Cryer et al, An Introduction to International Criminal Law and Procedure (2nd edition, Cambridge University Press 2011) 230.

[35] Ibid.

[36] M. Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application (Cambridge University Press 2011).

[37] Crimes against the peace were defined at Article 6(a) as: "planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing <http://avalon.law.yale.edu/imt/imtconst.asp#art6>

[38] ‘Nuremberg Trial Proceedings Vol. 1: Charter of the International Military Tribunal’ (The Avalon Project) <http://avalon.law.yale.edu/imt/imtconst.asp#art6> accessed 04 June 2020.

[39] Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (Penguin Classics, 1963) 257, quoting Donnedieu de Vabres, Le Proces de Nuremberg (1947).

[40] Trial of the Major War Criminals before the International Military Tribunal, Nuremberg 14 November 1945- 1 October 1946 <https://www.loc.gov/rr/frd/Military_Law/pdf/NT_Vol-I.pdf> 254; also Nuremberg IMT, Judgment and Sentences, reprinted in (1947) 41 American Journal of International Law 318.

[41] Ibid at 365.

[42] Ibid at 318.

[43] Ibid.

[44] Ibid.

[45] Ibid at 365.

[46] Antonio Cassese and Paola Gaeta, Cassesse’s International Criminal Law (3rd edition, Oxford University Press 2008) 88; see also the treatment of the question in Eichmann, 36 ILR 277, 283, SC; R v Finta [1994] 1 SCR 701. Kelsen argued that such crimes amounted to “open violations of the principles of morality generally recognized by civilized peoples and […] morally not innocent or indifferent when they were committed” and “according to the public opinion of the civilized world, it is more important to bring the war criminals to justice than to respect, in their trial, the rule against ex post facto law […]” in Hans Kelsen, ‘The Rule Against Ex Post Facto Laws and the Prosecution of the Axis War Criminals’ The Judge Advocate Journal Vol II(3) 1945 pp 10-11, cited by M Sanjeeb Hossain in ‘The Search for Justice in Bangladesh – An Assessment of the Legality and Legitimacy of the International Crimes Tribunals of Bangladesh through the Prism of the Principle of Complementarity’ (PhD Thesis, University of Warwick, September 2017) at 167.

[47] Resolution 95(I) <http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/95(I)> accessed 04 June 2020.

[48] Text of the Nürnberg Principles Adopted by the International Law Commission <http://legal.un.org/ilc/documentation/english/a_cn4_l2.pdf> accessed 04 June 2020.

[49] 1950 ILC Report, p. 124 cited by Phyllis Hwang in ‘Defining Crimes Against Humanity in the Rome Statute of the International Criminal Court’ (1998) 22(2) Fordham Journal of International Law 462.

[50] Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, December 20, 1945, 3 Official Gazette Control Council for Germany 50-55.

[51] In the 2nd edition of An Introduction to International Criminal Law and Procedure, Robert Cryer and others claim that ‘racial and religious persecution’ was omitted from Article 5(c) of the Tokyo Charter defining the Crimes against Humanity because “such crimes had not occurred in that theatre of conflict”.

[52] Mohamed E. Badar, ‘From the Nuremberg Charter to the Rome Statute: Defining the Elements of Crimes against Humanity’ (2004) 73 San Diego International Law Journal 82 cited in Sluiter 106.

[53] The Convention on the Prevention and Punishment of the Crime of Genocide was adopted by the United Nations General Assembly on 9 December 1948 as General Assembly Resolution 260. The Convention entered into force on 12 January 1951. <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CrimeOfGenocide.aspx> accessed on 17 March 2017.

[54] Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (Adopted and opened for signature, ratification and accession by General Assembly resolution 2391 (XXIII) of 26 November 1968; Entry into force: 11 November 1970) in accordance with article VIII.

Article I ( b ) Crimes against humanity whether committed in time of war or in time of peace as they are defined in the Charter of the International Military Tribunal, Nürnberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations, eviction by armed attack or occupation and inhuman acts resulting from the policy of apartheid , and the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, even if such acts do not constitute a violation of the domestic law of the country in which they were committed. <http://www.ohchr.org/Documents/ProfessionalInterest/warcrimes.pdf> accessed on 17 March 2017.

[55] International Convention on the Suppression and Punishment of the Crime of Apartheid (Adopted by the General Assembly of the United Nations on 30 November 1973) Article I. 1. The States Parties to the present Convention declare that apartheid is a crime against humanity and that inhuman acts resulting from the policies and practices of apartheid and similar policies and practices of racial segregation and discrimination, as defined in article II of the Convention, are crimes violating the principles of international law, in particular the purposes and principles of the Charter of the United Nations, and constituting a serious threat to international peace and security <https://treaties.un.org/doc/Publication/UNTS/Volume%201015/volume-1015-I-14861-English.pdf> accessed on 17 March 2017.

[56]  Inter-American Convention on Enforced Disappearance (Preamble): Reaffirming that the systematic practice of the forced disappearance of persons constitutes a crime against humanity; <http://www.oas.org/juridico/english/treaties/a-60.html> accessed on 17 March 2017.

[57] Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Former Yugoslavia Since 1991, annexed to Report of the Secretary-General Pursuant to Paragraph 2 of U.N. Security Council Resolution 808, U.N. GAOR, May 19, 1993, U.N. Doc S/25704 (defining crimes against humanity as "the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population: (a) murder; (b) extermination; (c) enslavement; (d) deportation; (e) imprisonment; (f) torture; (g) rape; (h) persecutions on political, racial and religious grounds; (i) other inhumane acts."

[58] Prosecutor v Dusko Tadic, Case No. IT-94_1, ICTY App. Ch., Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 Oct. 1995, para. 141.

[59] Ibid.

[60] International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, art. 3, U.N. Doc. S/Res/955 (1994), 33 I.L.M. 1598, 1603 (1994) (defining crimes against humanity as "the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation; (e) Imprisonment; (f) Torture; (g) Rape; (h) Persecutions on political, racial and religious grounds; (i) Other inhumane acts.").

[61] Prosecutor v Kayishema and Obed Ruzindana, Case No., ICTR-95_1-T, ICTR T. Ch. II, 21 May 1999, para. 130.

[62] Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, ICTR T. Ch. I, 2 Sept. 1998, para. 583

[63] Ibid, para. 584.

[64] For a legislative history, see H. von Hebel and D. Robinson, ‘Crimes within the Jurisdiction of the Court’, in R. S. Lee (ed.),  The International Criminal Court: The Making of the Rome Statute- Issues, Negotiations, Results (Kluwer, 1999), 79 at 90-103.

[65] Ar.t 7 For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b)Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h)Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

[66] Ibid.

[67] H. von Hebel and D. Robinson, ‘Crimes within the Jurisdiction of the Court’, in R. S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute - Issues, Negotiations, Results (Kluwer, 1999), 94-5, 98.

[68] Göran Sluiter, “Chapeau Elements” of Crimes Against Humanity in the Jurisprudence of the UN Ad Hoc Tribunals in Leila Nadya Sadat (ed.) Forging a Convention for Crimes against Humanity (Cambridge University Press) 108.

[69] Darryl Robinson, ‘Defining Crimes against Humanity at the Rome Conference’ (1999) 93 American Journal of International Law 43.

[70]Linton (n 1) 232; Fédération Nationale des Déportés et Internés Résistants et Patriotes and Others v. Barbie, Court of Cassation (Criminal Chamber), 20 December 1985, 78 I.L.R. 125; Touvier 100 ILR 338; R v. Finta [1994] 1 S.C.R. 701 (Can.)

[71] ICC, ‘Elements of Crime’ (ICC Website 2011) <https://www.icc-cpi.int/NR/rdonlyres/336923D8-A6AD-40EC-AD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf> accessed 04 June 2020.

[72] Art 2 <http://www.rscsl.org/Documents/scsl-statute.pdf>

[73] For discussion on the possible convention see M. Cherif Bassiouni, ‘Crimes against Humanity: The Need for a Specialized Convention’ (1994) 31 Columbia Journal of Transnational Law 457; also see the Crimes against Humanity initiative, discussed in Leila Sadat (ed.), Forging a Convention on Crimes against Humanity (Cambridge, 2011)

[74] Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, ICTR T. Ch. I, 2 Sept. 1998, para. 578

[75] Suzannah Linton, ‘Completing the Circle: Accountability for the Crimes of the 1971 Bangladesh War of Liberation’ (2010) 21(2) Criminal Law Forum 191, 231.

[76] Ibid at 231.

[77] Ibid at 231.

[78] Geoffrey Robertson QC, ‘Report on the International Crimes Tribunal of Bangladesh’ (International Forum for Democracy and Human Rights 2015) <http://www.barhumanrights.org.uk/wp-content/uploads/2015/02/REPORT-ON-THE-INTERNATIONAL-CRIMES-TRIBUNAL-OF-BANGLADESH.pdf> 96.

[79] Ibid at 95.

[80] Ibid.

[81] Ibid.

[82] Ibid.

[83] Government of Bangladesh v Abdul Quader Molla (2013) Criminal Appeal nos. 24-25 of 2013 <https://bangladeshtrialobserver.files.wordpress.com/2014/02/abdul-quader-molla-sc-appellate-division-judgment.pdf> accessed 04 June 2020.

[84] Geoffrey Robertson QC (n 78) 95.

[85] Diane Orentlicher, ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’ (1991) 100 Yale Law Journal 2537, 2588-90.

[86] Phyllis Hwang (n 31) 464.

[87] UNGA, ‘Situation of human rights in Cambodia’ UNGA Resolution A/RES/52/135 (27 February 1998) <https://undocs.org/en/A/RES/52/135> accessed 04 June 2020.

[88] ‘Report of the Group of Experts for Cambodia established pursuant to General Assembly resolution 52/135’ para. 6 <http://www1.umn.edu/humanrts/cambodia-1999.html> accessed 04 June 2020.

[89] Ibid. The people involved in this effort can be viewed in the annex part of the report. 

[90] Ibid at para. 71.

[91] Ibid.

[92] Ibid at para. 71.

[93] Niall Macdermot, ‘Crimes against Humanity in Bangladesh’ (1973) 7(2) The International Lawyer 482-83.

[94] ‘Report of the Group of Experts for Cambodia established pursuant to General Assembly resolution 52/135’ <http://www1.umn.edu/humanrts/cambodia-1999.html> para. 71 cited by M Sanjeeb Hossain in ‘The Search for Justice in Bangladesh – An Assessment of the Legality and Legitimacy of the International Crimes Tribunals of Bangladesh through the Prism of the Principle of Complementarity’ (PhD Thesis, University of Warwick, September 2017) at 178.

[95] Prosecutor v. George Rutaganda, Case No. ICTR-96-3, ICTR T. Ch. I, 6 Dec. 1999, paras. 71-4.

[96] Prosecutor v. Zoran Kupresic and Others, Case No. IT-95-16-T, ICTY T. Ch. II, 14 Jan 2000, paras 558, 570.

[97] Akayesu, Case No. ICTR A. Ch. 1 June 2001, paras 461-9.

[98] Fédération Nationale des Déportés et Internés Résistants et Patriotes and Others v. Barbie, Court of Cassation (Criminal Chamber), 20 December 1985, 78 I.L.R.

[99] Touvier 100 ILR 338 (Cour d’ Appel) (Appellate Court).

[100] Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Former Yugoslavia Since 1991, annexed to Report of the Secretary-General Pursuant to Paragraph 2 of U.N. Security Council Resolution 808, U.N. GAOR, May 19, 1993, U.N. Doc S/25704 (defining crimes against humanity as "the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population: (a) murder; (b) extermination; (c) enslavement; (d) deportation; (e) imprisonment; (f) torture; (g) rape; (h) persecutions on political, racial and religious grounds; (i) other inhumane acts."

[101] International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, art. 3, U.N. Doc. S/Res/955 (1994), 33 I.L.M. 1598, 1603 (1994) (defining crimes against humanity as “the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation; (e) Imprisonment; (f) Torture; (g) Rape; (h) Persecutions on political, racial and religious grounds; (i) Other inhumane acts.”).

[102] Art 7 For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b)Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h)Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

[103] Ibid.

[104] Prosecutor v. Kordic and Cerkez, ICTY T. Ch. III, Judgment, IT-95-14/2-T 26 February 2001, para. 694.

[105] Ibid.

[106] Kupreskic et al: Prosecutor v. Josipovic, Sanitic, Z. Kupreskic, M. Kupreskic, V. Kupreskic and Papic ICTY T. Ch. II, Judgment, IT-95-16-T, 14 January 2000.

[107] Ibid. para 618

[108] Robert Cryer et al., An Introduction to International Criminal Law and Procedure (3rd ed, Cambridge University Press 2014) 257.

[109] Kupreskic et al: Prosecutor v. Josipovic, Sanitic, Z. Kupreskic, M. Kupreskic, V. Kupreskic and Papic ICTY T. Ch. II, Judgment, IT-95-16-T, 14 January 2000, para 580.

[110] Ibid.

[111] Ibid.

[112] Cryer (n 34) 257.

[113] Ibid.

[114] Antonio Cassese, Paolo Gaeta and John R. W. D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press 2002) 376.

[115] Chief Prosecutor v.  Motiur Rahman Nizami ICT(1) BD 03 of 2011.

[116] Geoffrey Robertson QC (n 78) 96.

[117] Linton (n 1) 233.

[118] Robert Cryer (n 34) 234.

[119] Ibid at 234.

[120] Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, ICTR T. Ch. I, 2 Sept. 1998, para. 579.

[121] Article 3: Crimes contre l’humanité: Le Tribunal international pour le Rwanda est habilité à juger les personnes responsables des crimes suivants lorsqu’ils ont été commis dans le cadre d’une attaque généralisée et systématique dirigée contre une population civile quelle qu’elle soit, en raison de son appartenance nationale, politique, ethnique, raciale ou religieuse…<https://legal.un.org/avl/pdf/ha/ictr_EF.pdf> accessed 04 June 2020.

[122] Cryer (n 34) 235.

[123] Prosecutor v. Haradinaj, Balaj and Brahimaj, ICTY T. Ch. I, Judgment, IT-04-48-T, 3 April, 2008, para. 122.

[124] Ibid, para. 122.

[125] Art 7 (2) (a) “Attack directed against any civilian population” means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack. <https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf> accessed 04 June 2020.

[126] Prosecutor v. Kunarac, Kovac and Vukovic ICTY T. Ch. II, 22 February 2001, para. 428.

[127] Prosecutor v. Nahimana, Barayagwiza and Ngeze, A. Ch. Judgment, ICTR-99-52-A, 28 November 2007, para. 920.

[128] Prosecutor v. Taylor, T. Ch. II, Judgment, SCSL-03-01-T, 18 May 2012, para. 511.

[129] Prosecutor v. Al Bashir (Decision on the Prosecutor’s Application for a Warrant of Arrest against Al Bashir), ICC PTC I, 4 March 2009, para. 81.

[130] Cryer et al (n 34) 235.

[131] Prosecutor v. Kordic and Cerkez, ICTY T. Ch. III, Judgment, IT-95-14/2-T 26 February 2001, para. 101.

[132] Ibid at para. 101.

[133] Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, ICTR T. Ch. I, 2 Sept. 1998, para. 580.

[134] Ibid. para. 580.

[135] Kai Ambos and Steffen Wirth, ‘The Current Law of Crimes against Humanity: An analysis of UNTAET Regulation15/2000’ (2002) 13 Criminal Law Forum 1, 18-20.

[136] Prosecutor v. Kunarac, Kovac and Vukovic ICTY T. Ch. II, 22 February 2001, para. 94.

[137] Ibid at para. 94.

[138] Tadic, ICTY T. Ch. II, Judgment, 3 March 2000, para. 648.

[139] Ibid at para. 648.

[140] Prosecutor v. Nahimana, Barayagwiza and Ngeze, A. Ch. Judgment, ICTR-99-52-A, 28 November 2007, para. 920.

[141] Ibid at para. 920.

[142] The Prosecutor v. Mile Msksi, Miroslav Radi, and Veselin Ljivan~anin, Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, Case No. IT-95-13-R61, T.Ch.I, 3 Apr. 1996 (Vukovar Hospital Decision). Para 30. Cited in Tadic Judgment, para. 649.

[143] Tadic, ICTY T. Ch. II, Judgment, 3 March 2000, para. 649.

[144] Ibid at para. 649.

[145] Trial of Josef Altstötter and Others (Justice case), Vol. VI, Law Reports of Trials of War Criminals (U.N. War Crimes Commission London, 1949) 79-80.

[146] Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, December 20, 1945, 3 Official Gazette Control Council for Germany 50-55 (1946).

Article II (1)(c) Crimes against Humanity. Atrocities and offences, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated. . . . <http://hrlibrary.umn.edu/instree/ccno10.htm; http://avalon.law.yale.edu/imt/imt10.asp> accessed 04 June 2020.

[147] Trial of Josef Altstötter and Others (Justice case), Vol. VI, Law Reports of Trials of War Criminals (U.N. War Crimes Commission London, 1949) 79-80.

[148] FédérationNationale des Déportés et InternésRésistants et Patriotes and Others v. Barbie, Court of Cassation (Criminal Chamber), 20 December 1985, 78 I.L.R. 125.

[149] R v. Finta [1994] 1 S.C.R. 701.

[150] Guenael Mettraux, ‘The Definition of Crimes against Humanity and the Question of a ‘Policy’ Element in Leila Nadiya Sadat (ed.), Forging a Convention on Crimes against Humanity (Cambridge University Press 2011)

[151] Prosecutor v. Kunarac, Kovac and Vukovic ICTY A. Ch. Judgment, IT-96-23 and IT-96-23/1, 12 June 2002 <https://www.icty.org/x/cases/kunarac/acjug/en/kun-aj020612e.pdf> accessed 04 June 2020. 

[152] Ibid at para. 98.

[153] Trial of the Major War Criminals before the International Military Tribunal, Nuremberg 14 November 1945- 1 October 1946 < https://www.loc.gov/rr/frd/Military_Law/pdf/NT_Vol-I.pdf > 84, 254, 304.

[154] Ibid at 318-319.

[155] re Ahlbrecht ILR 16/1949, 396.

[156] Ivan Timofeyevich Polyukhovich v The Commonwealth of Australia and Anor (1991) 172 CLR 501 Case FC 91/026.

[157] Attorney-General v Adolph Eichmann District Court of Jerusalem, Criminal Case No. 40/61.

[158] Mugesera et al. v Minister of Citizenship and Immigration IMM-5946-98, 10 May 2001, Federal Court of Canada, Trial Division.

[159] re Trajkovic District Court of Gjilan (Kosovo, Federal Republic of Yugoslavia), P Nr 68/2000, 6 March 2001.

[160] Moreno v Canada (Minister of Employment and Immigration Federal Court of Canada, Court of Appeal, 1994 1 F.C. 298, 14 September 1993.

[161] Sivakumar v Canada (Minister of Employment and Immigration) Federal Court of Canada, Court of Appeal, 1994 1 F.C. 433, 4 November 1993.

[162] Report of the Secretary General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), S/25704, 3 May 1993, paras 47-48

[163] 1954, vol. II, 150

[164] 29 April – 19 July 1991, Supplement No 10 (UN Doc No A/46/10), <https://legal.un.org/ilc/documentation/english/reports/a_46_10.pdf> 265-266.

[165] 2 May – 22 July 1994, Supplement No 10 (UN Doc No A/49/10) < https://legal.un.org/ilc/documentation/english/reports/a_49_10.pdf>, 75-76.

[166] 2 May – 21 July 1995, 47, 49 and 50

[167] 6 May – 26 July 1996, Supplement No 10 (UN Doc No A/51/10), <https://legal.un.org/ilc/documentation/english/reports/a_51_10.pdf>93 and 95-96.

[168] Prosecutor v. Goran Jelisi, ICTY A. Ch., Judgment, IT-95-10-A, 5 July 2001.

[169] Ibid at para. 48.

[170] Prosecutor v. Kunarac, Kovac and Vukovic ICTY A. Ch. Judgment, IT-96-23 and IT-96-23/1, 12 June 2002 p.30.

[171] Public Prosecutor v Menten Supreme Court of the Netherlands, 13 January 1981, reprinted in 75 ILR 331, 362-363.

[172] Prosecutor v. Kunarac, Kovac and Vukovic ICTY A. Ch. Judgment, IT-96-23 and IT-96-23/1, 12 June 2002 p.30.

[173] Ibid at p. 30.

[174] Cryer et. al (n 34) 237.

[175] Government of Bangladesh v Abdul Quader Molla (2013) Criminal Appeal nos. 24-25 of 2013 <https://bangladeshtrialobserver.files.wordpress.com/2014/02/abdul-quader-molla-sc-appellate-division-judgment.pdf> accessed 04 June 2020.

[176] Ibid. p. 241

[177] Ibid. p. 585

[178] Trial of Josef Altstötter and Others (Justice case), Vol. VI, Law Reports of Trials of War Criminals (U.N. War Crimes Commission London, 1949) 79-80.

[179] History of the United Nations War Crimes Commission and the Development of the Laws of War, 1948 <http://www.unwcc.org/wp-content/uploads/2017/04/UNWCC-history.pdf> accessed 04 June 2020.

[180] Ibid at 179.

[181] Suzannah Linton, ‘Completing the Circle: Accountability for the Crimes of the 1971 Bangladesh War of Liberation’ (2010) 21(2) Criminal Law Forum 191-311.

[182] Ibid at 234.

[183] Law on the establishment of extraordinary chambers in the courts of Cambodia for the prosecution of crimes committed during the period of democratic Kampuchea <http://www.eccc.gov.kh/sites/default/files/legal-documents/KR_Law_as_amended_27_Oct_2004_Eng.pdf> accessed 04 June 2020.

[184] Statute of the International Court of Justice.https://www.icj-cij.org/en/statute

[185] ICJ Reports, 1985, pp.13, 29; 81 ILR, p. 239

[186] Ibid.

[187] Doudou Thiam (Special Rapporteur), Fourth report on the draft code of Offences against the Peace and Security of Mankind, 11 March 1986 <https://legal.un.org/ilc/documentation/english/a_cn4_398.pdf> accessed 04 June 2020.

[188] Prof. V.V. Pella, Memorandum (original text in French), Yearbook of the International Law Commission, Vol. II, 1950 <https://legal.un.org/docs/?path=../ilc/publications/yearbooks/english/ilc_1950_v2.pdf&lang=E> accessed 04 June 2020.

[189] DoudouThiam (Special Rapporteur), Fourth report on the draft code of Offences against the Peace and Security of Mankind, 11 March 1986 <https://legal.un.org/ilc/documentation/english/a_cn4_398.pdf> p. 59 cited by M Sanjeeb Hossain in ‘The Search for Justice in Bangladesh – An Assessment of the Legality and Legitimacy of the International Crimes Tribunals of Bangladesh through the Prism of the Principle of Complementarity’ (PhD Thesis, University of Warwick, September 2017) at 174.

[190] Ibid. p. 60.

[191] I am indebted to my friend Dr M Sanjeeb Hossain, Teaching Fellow at the University of Warwick for sharing his brilliant and exhaustive thesis on this issue titled The Search for Justice in Bangladesh – An Assessment of the Legality and Legitimacy of the International Crimes Tribunals of Bangladesh through the Prism of the Principle of Complementarity’ - a copy of which is with me.

[192] Government of Bangladesh v Abdul Quader Molla (2013) Criminal Appeal nos. 24-25 of 2013 <https://bangladeshtrialobserver.files.wordpress.com/2014/02/abdul-quader-molla-sc-appellate-division-judgment.pdf> accessed 04 June 2020.

[193] Ibid. 241-242

[194] Abdul Quader Molla (n 192) 87. 

[195] Ibid at 86.

[196] Ibid at 92-93.

[197] Bangladesh v. Sheikh Hasina and M/s. Supermax International Private Ltd. v. Samah Razor Blades Industries cited in Government of the People’s Republic of Bangladesh – versus – Abdul Quader Molla, CRIMINAL APPEAL NOS. 24-25 OF 2013, p. 100-101, 107.

[198] Ibid at 575.

[199] Id at 572.

[200] M Sanjeeb Hossain, ‘The Search for Justice in Bangladesh – An Assessment of the Legality and Legitimacy of the International Crimes Tribunals of Bangladesh through the Prism of the Principle of Complementarity’ (PhD Thesis, University of Warwick, September 2017) 185-187.

[201] Ibid at 242.

[202] M Sanjeeb Hossain, ‘The Search for Justice in Bangladesh – An Assessment of the Legality and Legitimacy of the International Crimes Tribunals of Bangladesh through the Prism of the Principle of Complementarity’ (PhD Thesis, University of Warwick, September 2017) 185-187.



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Bahzad Joarder is a Sessional Tutor at the School of Law, University of Warwick.