Untold Facts

Post-mortem of Mujib killing trial vis-�-vis AI’s appeal

History may be written by the victors, but the rules of law can and should offer differing interpretations of history when needed. Unless that becomes evident, any meaningful debate on as historic and sensational a matter as the Sheikh Mujib killing trial is likely to remain less convincing to observers at home and abroad.

Besides, various sections of the government having rejected on November 23 the Amnesty International’s (AI) appeal against the execution of the five former army officers convicted for the murder of Sheikh Mujibur Rahman on August 15, 1975, such utterances could prove prejudicial to the discretion the Honourable President of the country does possess in exercising his Constitutional obligations.

AI’s argumen
The AI made the appeal on November 20 in a public statement, calling on the Bangladesh authorities not to carry out death sentences against the five convicted accused whose prayer for judicial review got denied on November 19.

The AI statement embodied a principled stand of the organization that reads: “Amnesty International opposes the death penalty in all cases regardless of the nature of the crime, the characteristics of the offender, or the method used by the state to kill the prisoner. The death penalty violates the right to life as proclaimed in the Universal Declaration of Human Rights. It is the ultimate cruel, inhuman and degrading punishment.”

The statement added, “President Zillur Rahman should commute the death sentences as a matter of urgency. All other death sentences should also be commuted.”

Post-mortem of the verdict
Meanwhile, since the verdict at the nation’s apex court, speculations have marred the exact legal interpretations of the laws that would govern the timing and the modalities of the penalties imposed on the accused, the pre-emptive and the prejudicial utterances of various government mouthpieces not to commute the death sentence by the President notwithstanding.

As the countdown to hanging advances (the convicted accused are all decorated Freedom Fighters), many observers question how the leave to appeal application got accepted by the court for a review hearing in the first place, if there was no discernible error in law, facts or natural justice, as the final verdict seems to have shown.

Army chief’s blunder ignored
The collective fault argument is a double-edged sword, although the prosecution and the judges chose to use it as a mere tool of political convenience instead of according it the legal relevance and weight it lawfully deserved.

The verdict has overlooked that the argument of collective fault of the military command does shift the onus of the crime on the highest command of the armed forces and makes it an offence of rebellion, or a coup d etat, which can only be tried by military courts under corresponding laws and regulations.

Besides, the fact that two of the three incumbent chiefs of the services of the time — Maj. Gen. K M Shafiullah and Air Vice Marshal A K Khandoker — are high officials, and incumbent minister (AK Khandoker) of the AL-led government, unearthing a distinct military-political nexus in the crime’s commission was necessary, especially one of Sheikh Mujib’s trusted ministers, Khondaker Mustaque Ahmed, having sworn in as the country’s new President after the coup, as did many other cabinet members from Mujib’s government.

Command responsibility
Now that the verdict has been rendered, the argument on command responsibility does not cease to vanish, and, it remains a very serious one, with ample ramifications for the Constitutional and the military history of the nation. Often referred to in the legal parlance as the Yamashita standard or the Medina standard, the ‘command responsibility’ is an established doctrine of law that deals with hierarchical accountability in cases involving crime committed by military personnel who are under command, breaking the chain of command from the top.

The Hague Conventions IV (1907) and X (1907) established the doctrine of “command responsibility” and it was applied for the first time by the German Supreme Court in Leipzig, following World War I, in the trial of Emil Muller.

The ‘Yamashita standard’, on the other hand, is based on the precedent set by the US Supreme Court in the case of Japanese General Tomoyuki Yamashita. Gen. Yamashita was prosecuted, in a similarly controversial trial, for atrocities committed by troops under his command in the Philippines. The charge against him included “unlawfully disregarding and failing to discharge his duty as a commander to control the acts of members of his command.”

Finally, the ‘Medina standard’ is based upon the prosecution of the US Army Captain Ernest Medina in connection with the “My Lai Massacre” during Vietnam War. Although Captain Medina was eventually acquitted of all charges, the precedent holds that a commanding officer, being aware of a human rights violation or a war crime, remains criminally liable if he does not take action against those who commit such crimes. The same doctrine has been used in many countries to implicate senior commanders of armed forces in trials relating to mutiny and insubordination.

Fake state of denial
All these show that the verdict could and should have been more exhaustive and insightful in its deliberations in order to make a lasting imprint on the posterity.

Let’s not forget that the AI does whatever it is mandated to do. And, the matter of granting an amnesty not being dependent on any particular minister or prosecutor of the government, it was surprising that Home Minister Sahara Khatun rejected the AI appeal that simply insisted that “one human rights violation (the killings) should not be followed by another of hanging the convicts.” This state of denial does infringe into the Presidential prerogatives that is yet to unfold.

Worst still, the chief state counsel Anisul Huq’s cautioning of the AI that it ’should refrain from making such request’ constituted an act of deplorable folly. The AI works independent of governments to ensure common good of entire mankind.

Author: M. Shahidul Islam
Source: Weekly Holiday