UCJ in the prosecution of Pakistani war criminals
Given the fact that the International Crimes Tribunals are preoccupied with the trials of the second tire of perpetrators i.e. the local collaborators, it is generally perceived that the Pakistani war criminals (and their spirits) have been enjoying permanent impunity. The lack of jurisdiction of the permanent International Criminal Court to try these criminals (because those incidents occurred before 2002) and the Government of Pakistan's patronage to safeguard their criminality made the perception more apparent. But the inability of Bangladesh, the indifference of Pakistan, or the absence of a proper international forum to ensure the justice for the victims of 1971 does not necessarily mean that there remains no hope. Invoking the universal jurisdiction may be the last chance to prosecute those Pakistani War Criminals.
The universal jurisdiction is one of the five principles of international law upon which a state or an international organization may exercise its jurisdiction. There are two types of universal jurisdiction: first universal civil jurisdiction, e.g. the US Alien Tort Statute and second, the universal criminal jurisdiction (hereafter, UCJ). In pursuance of the UCJ, any state may prosecute a crime without having any territorial, national or national-interest link with the crime when the crime was committed (The American Law Institute, Third Restatement of the Foreign Relations Law of the United States, 1987).
The arrest of Chilean dictator Agosto Pinochet is marked as the grand moment of the UCJ. It attained further prospects with the promulgation of Belgian and Spanish universal jurisdiction laws and their global law enforcement activities. Though many comments that the UCJ lost its relevance with the amendment of the Belgian law in 2003 and that of Spanish law in 2009 and 2014, the incidents of prosecution are not totally of the practice. Trial International, a Geneva-based NGO documented about 58 ongoing cases involving the UCJ all over the world. It is pertinent to elucidate that a significant number of the accused were asylum seekers of the states where they were facing trial.
Professor Máximo Langer of the University of California at Los Angelos in an article published in the Journal of International Criminal Justice (2015) analyzed this paradigm change in a very articulatefashion. He explained the preceding two aspects of the UCJ as 'global enforcer' and 'no safe haven' approaches. The 'global enforcer' approach denotes that the states will invoke the UCJ to prosecute the international crimes irrespective of the perpetrators' current location. The 'no safe haven' approach signifies that no state will allow its territory to shelter the war criminals and it will duly prosecute them for their individual criminal responsibility.
Returning to the issue of Pakistani war criminals, there should be a proper study on the possibility of invoking the UCJ to prosecute them. Though most of the Pakistani war criminals are presumed to be dead, not all of them are. There is a common practice among the Pakistani army that after their retirement they tend to immigrateto the UK and other western states and many these countries have the universal jurisdiction laws. In this context, the 'global enforcer' approach will be unrealistic but the 'no safe haven' approach has a very good prospect.
Keeping this prospect in mind, the Government of Bangladesh should react positively. Till now, there has been no detailed documentation on the atrocities committed by the Pakistani war criminals. Moreover, no efforts have been made to document the whereabouts of the recognized Pakistani war criminals. In case of trials of international crimes, the issue of last of a long time is not an issue in itself. The prospects of the successful trials lie in the proper documentation of crimes.
We still hear that some Nazi-era perpetrators are facing trials and convictions (the last incident took place on 21 September 2018). The success of these trials is generally attributable to the post-war efforts to preserve the evidence of the Nazi atrocities. If the Government of Bangladesh wishes to establish justice for its people who sacrificed their lives for its independence, it would come with a genuine motive.
In the existing geopolitical reality, it will be very unrealistic to expect an 'Adolf Eichmann' but the current practice of the UCJ gives rise to the hope of having a few 'Agosto Pinochets'. Let us be optimistic.
(The views and opinions expressed in this article are those of the author's; and do not represent the Daily Observer)
Quazi Omar Foysal is an independent researcher