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1971 WAR CRIMES: Questions raised about arrest warrants

Edit Date:8/6/2010 12:00:00 AM

Mon, Aug 2nd, 2010 9:17 am

David Bergman

Special Reports Editor Dhaka, Aug 2 (bdnews24.com) –

The decision by the International Crimes Tribunal to issue warrants for the arrest of four Jamaat-e-Islami leaders concerning alleged international crimes committed during the 1971 War of Independence was made without a proper legal basis, according to an expert lawyer. Anisul Huq, the country's top criminal lawyer, responsible for the prosecution of the killers of Sheikh Mujibur Rahman and now lead prosecutor in the BDR murder cases, told bdnews24.com that the relevant war crimes law only allows the tribunal to issue an arrest warrant "after [the tribunal] had framed charges".

The tribunal has not yet framed charges against any of the four men on whom it had issued warrants. The four Jamaat leaders–Jamaat chief Motiur Rahman Nizami, secretary general Ali Ahsan Muhammad Mojaheed and senior assistant secretaries-general Muhammed Kamaruzzaman and Abdul Quader Molla–are due to be produced before the tribunal on Monday. According to Huq's interpretation, the tribunal may have made a serious error at its very first public hearing with uncertain implications. Moreover, the law under which the four Jamaat leaders are being prosecuted does not give them recourse to a court – other than the tribunal itself – to appeal against the decision. bdnews24.com could not contact the tribunal's chief prosecutor Golam Arif Tipu for a comment. On July 26, the tribunal chairman, justice Nizamul Huq ruled, "Warrants of arrest should be issued against these four people to ensure effective and proper investigation.

" The order was made following submissions made by Tipu. The chief prosecutor quoted rule 9 of the tribunal's rules of procedure which states that an investigation officer can obtain a "warrant of arrest from the tribunal for arrest of a person at any state of the investigation if he can satisfy the tribunal that such arrest is necessary for effective and proper investigation." However, Anisul Huq argues that this rule has to be read in light of 11(5) of the International Crimes (Tribunal) Act 1973. This states that, "Any member of a Tribunal shall have power to direct, or issue a warrant for, the arrest of, and to commit to custody, and to authorise the continued detention in custody of, any person charged with any crime specified in section 3." Section 3 includes the offences of crimes against humanity, genocide and war crimes.

The section makes clear that the tribunal only has the power to issue an arrest warrant against a person if it has already "charged" that person with one of these offences. "The power to issue an arrest warrant for these crimes can only be invoked after the tribunal has framed charges," Anisul Huq told bdnews24.com. The senior lawyer says that Rule 9 of the rules of procedure does not supersede the Act–it cannot be used to change the powers of the tribunal.

"The rules cannot contradict the Act. The Act is the guide for the rules, not the other way round." He says powers set out in the legislation itself always trump rules of procedures when they come into conflict. He notes for example that section 22 of the Act allows the Tribunal to regulate its own procedure, that is, publish its own rules of procedure — "subject to the provision[s] of this Act." EXTRACTS FROM THE ACT AND RULES International Crimes (Tribunal) Act 1973 11 (5) Any member of a Tribunal shall have power to direct, or issue a warrant for, the arrest of, and to commit to custody, and to authorise the continued detention in custody of, any person charged with any crime specified in section 3. 22 Subject to the provision of this Act, a Tribunal may regulate its own procedure. 24 No order, judgment or sentence of a Tribunal shall be called in question in any manner whatsoever in or before any court or other authority in any legal proceedings whatsoever except in the manner provided in section 21. 21(1) A person convicted of any crime specified in section 3 and sentenced by a Tribunal shall the right of appeal to the Appellate Division of the Supreme Court of Bangladesh against such conviction and sentence.

Rules of Procedure, dated 15 July 1, 2010 9(1) The Investigation Officer, through the Prosecutor, may obtain an warrant for arrest from the Tribunal for arrest of a person at any stage of the investigation if he can satisfy the Tribunal that such arrest is necessary for effective and proper investigation. 2(5) "Charge" refers to the accusation of crimes against an accused framed by the Tribunal.

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