List of settled issues regarding Bangladesh war crimes trials

Here is the list of 12 key issues settled by the Appellate Division and the International Crimes Tribunal as mentioned in the judgement in the case against ex-Jamaat MP Sakhawat Hossain and seven others.

i. Customary International Law [CIL] shall not be applied if it is contrary to the Act of 1973;

ii. There is no rule of CIL that prohibits our domestic Tribunal to proceed with the trial as per our domestic legislation;

iii. Our domestic Tribunal has the jurisdiction to continue with the trial in any manner acting in derogation of rules of public international law;

iv. There is nothing repugnant to CIL in the Act of 1973, rather it is consonant with the provisions of CIL;

ICTv. The inordinate delay in commencing any proceedings under the Act of 1973 ipso facto can not be a ground to doubt the truth or veracity of the prosecution case;

vi. By the amendment of section 3(1) of the Act of 1973 through Act No.LV of 2009 the jurisdiction of the Tribunal has been extended to try and punish ‘any individual,’ ‘organization’ or ‘group of individuals’ besides any member of any armed, defence or auxiliary forces, irrespective of his nationality who has committed crimes against Humanity mentioned in section 3(2) of the Act of 1973;

vii. The Act of 1973 is a protected law and the moment, sub- section (1) of section 3 was amended by way of substitution, it became part of the Statute and it got the protection of any legal challenge to be void or unlawful or even to have become void or unlawful in view of the provisions of Article 47(3) of our Constitution;

viii. The clemency given to the admitted prisoners of War, pursuant to the tripartite agreement of 1974, in no way, either match the Act of 1973 or any of its provisions ineffective, invalid or void;

ix. Mere failure of the successive governments to act in accordance with the Act of 1973 for last more than forty years, in no way, gave any right to the accused to be exonerated from being tried for the commission of crimes against Humanity as mentioned in section 3(2) of the Act of 1973;

x. In the Act of 1973, no limitation has been prescribed for initiating proceedings against any individual or group of individuals or organization or any member of any armed, defence or auxiliary forces irrespective of nationality for the commission of his crimes mentioned in section 3(2) of the Act of 1973;

xi. The Collaborators Order, 1972, a different legislation aiming to prosecute the persons for the offences punishable under the Penal Code, were scheduled in the Collaborators Order, 1972, while the Act of 1973 has been enacted to prosecute and try the persons for crimes against Humanity, genocide and other crimes committed in violation of customary international law [CIL], and as such, there is no scope to characterize the offences indulging in the Collaborators Order, 1972 to be the same offences as specified in the Act of 1973;

xii. The Act of 1973 is a codified law, thus, it is not needed to travel to seek assistance from other trials held or is being held by the tribunals/ courts either under the charter of agreements of the nations or under other arrangements under the mandate of United Nations or other International body, such as Nuremberg trial and the Balkan trials.


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